[This is the subject of a motion lodged in the Scottish Parliament by Robert Brown MSP, a member of the Justice Committee and a solicitor. So far it has been signed by four more Scottish Liberal Democrat MSPs and one Scottish Green Party MSP. The motion reads as follows:]
S3M-07333 Robert Brown (Glasgow) (Scottish Liberal Democrats): No Consultation with Scottish Human Rights Commission on Emergency Legislation— That the Parliament notes the views of Professor Alan Miller, Chair of the Scottish Human Rights Commission, that there are serious concerns about both the human rights implications and the detailed terms of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, which was drafted specifically to address a human rights issue; believes that the legislation may well leave Scottish criminal procedure relating to the detention and interrogation of suspects open to further challenge under the European Convention on Human Rights; feels that the speed with which the legislation was rushed through the Parliament was unnecessary and represented a constitutional outrage, and is appalled that the Scottish Government did not consult the Scottish Human Rights Commission, a body set up for advice on precisely this type of case, on what is considered the biggest human rights issue since the Scottish Parliament was established in 1999.
[A related Press Association news agency report on the Driffield Times website reads in part:]
A Holyrood committee has been urged to scrutinise the impact of emergency legislation rushed through Parliament.
MSPs voted last month to amend Scots law by granting criminal suspects immediate access to a lawyer.
The Scottish Government said it was necessary because the Supreme Court had ruled that the law was in breach of the European Convention on Human Rights. The ruling was prompted after an appeal brought by Peter Cadder, who was convicted at Glasgow Sheriff Court of two assaults and breach of the peace on interview evidence.
Liberal Democrats opposed the changes, which also allow extensions to the time suspects can be held without charge.
MSP Robert Brown criticised the Government for not consulting the Scottish Human Rights Commission and demanded that the Justice Committee should investigate.
He said: "This, after all, is one of the most significant civil liberties issues in Scotland since the establishment of the Parliament. The law is almost certainly going to be challenged as soon as a suspect is interviewed without a solicitor. This will throw the whole process back in the air again."
Mr Brown, who is the party's justice spokesman, lodged a motion at Parliament outlining his concerns and said the speed of the legislation was a "constitutional outrage". (...)
Mr Brown said there are "major issues" over the interpretation of the legislation, adding: "My own substantial amendments to the emergency legislation only really scratched the surface of the problems that are likely to emerge.
"Professional bodies are right to warn about the impact on legal aid. I am worried that this could really damage the public's ability to access the legal system. This is just one of several unintended consequences of the rushed and problematic legislation."
Monday, 8 November 2010
All those in favour of unfair trials, please stand up
[This is the heading over a robust article by Maggie Scott QC in today's edition of The Scotsman arising out of the reaction by the Scottish Government (and others) to the UK Supreme Court's decision in the Cadder case. While not directly concerned with the emergency legislation, the article has much to say that is relevant to the Megrahi case. I quote only a few paragraphs:]
The Supreme Court decision in Cadder was entirely predictable, if not inevitable, in view of the decisions on the issue by the European Court of Human Rights. What is called into question is not the decision of the Supreme Court, but the earlier decision of seven Scottish judges which failed to enforce the right to legal advice.
The decision of the Scottish Appeal Court in its interpretation of the requirements of the European Convention was simply, in the words of Lord Hope of Craighead, not tenable. The question that is raised here is how did the Scottish judges get it so wrong ?
The answer, in my view, is rooted in a repeated refusal by Scottish judges in criminal matters to engage with and accept the consequences of the application of convention rights. An example of this arose in Cadder where the Scottish Appeal Court refused to entertain an application for leave to appeal to the Supreme Court. Leave was subsequently granted by the Supreme Court itself. (...)
The Justice Secretary also seeks to justify his criticism of "interference" by the Supreme Court, by reference to the proud and "admired" system of criminal justice in Scotland. Unfortunately in recent years, the Scottish criminal justice system, notwithstanding the requirement of corroboration, has lagged behind other comparable jurisdictions in both its development of the criminal law and in respect of procedural rights.
Examples include our failure to introduce proper disclosure of information to the defence; our narrow and restrictive approach to appeals; our failure to develop a proactive judicial role in the protection of the fairness of trials; our failures to provide adequate safeguards regarding identification evidence and, as evidenced in this case, our failure to fully embrace and properly implement convention rights in criminal cases. It is my experience that we are no longer so admired internationally.
The Justice Secretary further complains of a "small industry" of lawyers who take cases to London. I must, presumably, declare myself a member of same.
This is because I consider it my duty to pursue a client's constitutional right to appeal to the Supreme Court to enforce his/her human rights. I have regrettably found it necessary to take the long road to London on a number of occasions, because of the failure of the Scottish courts to secure those rights. The very fact of this complaint highlights the misplaced hostility involved here.
In fact, the decision in Cadder demonstrates the need to have Scottish access to the Supreme Court in order to properly protect human rights. If such access is denied then the Scottish people - alone within the UK - will be truly disadvantaged.
The Supreme Court decision in Cadder was entirely predictable, if not inevitable, in view of the decisions on the issue by the European Court of Human Rights. What is called into question is not the decision of the Supreme Court, but the earlier decision of seven Scottish judges which failed to enforce the right to legal advice.
The decision of the Scottish Appeal Court in its interpretation of the requirements of the European Convention was simply, in the words of Lord Hope of Craighead, not tenable. The question that is raised here is how did the Scottish judges get it so wrong ?
The answer, in my view, is rooted in a repeated refusal by Scottish judges in criminal matters to engage with and accept the consequences of the application of convention rights. An example of this arose in Cadder where the Scottish Appeal Court refused to entertain an application for leave to appeal to the Supreme Court. Leave was subsequently granted by the Supreme Court itself. (...)
The Justice Secretary also seeks to justify his criticism of "interference" by the Supreme Court, by reference to the proud and "admired" system of criminal justice in Scotland. Unfortunately in recent years, the Scottish criminal justice system, notwithstanding the requirement of corroboration, has lagged behind other comparable jurisdictions in both its development of the criminal law and in respect of procedural rights.
Examples include our failure to introduce proper disclosure of information to the defence; our narrow and restrictive approach to appeals; our failure to develop a proactive judicial role in the protection of the fairness of trials; our failures to provide adequate safeguards regarding identification evidence and, as evidenced in this case, our failure to fully embrace and properly implement convention rights in criminal cases. It is my experience that we are no longer so admired internationally.
The Justice Secretary further complains of a "small industry" of lawyers who take cases to London. I must, presumably, declare myself a member of same.
This is because I consider it my duty to pursue a client's constitutional right to appeal to the Supreme Court to enforce his/her human rights. I have regrettably found it necessary to take the long road to London on a number of occasions, because of the failure of the Scottish courts to secure those rights. The very fact of this complaint highlights the misplaced hostility involved here.
In fact, the decision in Cadder demonstrates the need to have Scottish access to the Supreme Court in order to properly protect human rights. If such access is denied then the Scottish people - alone within the UK - will be truly disadvantaged.
Dr Swire has meeting with Moderator, Cardinal and Primus
[I am grateful to Dr Jim Swire for this account of a meeting that he had in Dunblane on 2 November 2010 with the Moderator of the General Assembly of the Church of Scotland (Right Rev John Christie), the Roman Catholic Archbishop of St Andrews and Edinburgh (Cardinal Keith O'Brien) and the Primus of the Scottish Episcopal Church (Most Rev David Chillingworth, Bishop of St Andrews, Dunkeld and Dunblane).]
This meeting was convened by Cardinal O'Brien, following his correspondence with Dr Jim Swire, which in turn had arisen in response to an article published by Cardinal O'Brien in Scotland on Sunday on 8th August 2010. This article had contrasted the position of the judicial systems and punishments of the United Sates with those of Scotland, including the provision for compassion, and discussed their respective relationships to justice and to revenge. The meeting also followed the presentation by Justice for Megrahi (JFM) to the Public Petitions Committee of the Holyrood Parliament, which the Cardinal had attended. My apologies (...) for so long a review of our meeting.
It is the belief of JFM that the verdict against Mr Megrahi and the way in which the court at Zeist reached that verdict are insecure. In addition material released since the verdict by elements of his defence team, and by a UN official observer of the trial (Prof Hans Koechler), together with the limited findings of the SCCRC thus far made public, profoundly undermine confidence that justice has been delivered in this case. Since there were also aspects of the preparation of evidence for use in the court which might have been influenced by the political considerations of states outwith Scotland, the need to review the impartiality of our justice system in this case is greatly augmented.
JFM had therefore mounted the following petition to the Holyrood Parliament:
to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.
This commentary below represents only Dr Jim Swire’s personal comments concerning this meeting, which he felt very privileged to have attended. The meeting was chiefly concerned with Dr Swire attempting to define how he sees the current position over the Lockerbie trial, the trial’s origins and some of the events that followed it. He personally is convinced that the SCCRC were right to announce that they believed this case might have been a miscarriage of justice
Based on his own experiences of this case, Dr Swire himself is satisfied that Mr Megrahi could not have been involved as charged: this differs from the position of JFM, but of course we share the imperative that the whole trial process must be re-examined if we are to be sure what justice for Megrahi should be. Therefore this account is written partly as a personal assessment of the situation, and in the first person.
I hope that each of you three Church leaders may feel able to publish some comment upon the situation discussed here when you have had the opportunity to review the implications with your respective churches, and that whatever these comments may be, they may be made available to your respective congregations, and as widely as possible. Of course you are also at liberty to use all or any representative part of this account in any way you wish, and it is also my hope that you will not object to the publication of this account on The Lockerbie Case blog of Professor Robert Black. Over the question of how justice should serve our community, I believe that this case is best exposed to public view by any possible means, for its implications should concern all of us in Scotland.
The establishment and maintenance of an impartial justice system is fundamental to the health of any civilised community. If the confidence of a community in the impartiality of its justice system is undermined, or indeed is even significantly suspected of having been undermined, the entire community is disadvantaged. Justice must not only be done, it must be seen to be done.
This disaster arose when a Boeing 747 containing 259 passengers and crew and baggage, all loaded at Heathrow and destined for New York, crossed into Scottish airspace over the Solway Firth, at about 7.02 pm on the 21st of December 1988 and exploded over Lockerbie about one minute later with the loss of 270 innocent lives, 11 of them among the people of Lockerbie below. There are therefore immediate questions over where the limits of Scottish legal authority should be set, since the loading of the bomb had occurred in London’s Heathrow airport. Those questions in turn bear upon matters relevant to the present state of devolution between Scotland and England. They also bear inexorably upon aspects of the accumulation and handling of evidence and forensic artefacts for use in the trial. For instance, the UK forensics officers appointed to this Scottish case by UK the authorities had already been very severely criticised by a Lord Chief Justice of England for the unreliability of their evidence in preceding IRA based murder trials in England.
Both the Lockerbie Fatal Accident Inquiry and the Zeist trial were held under Scots law, but their findings reach far over the border and beyond even European boundaries, as does the assembly of evidence and witnesses for their use. The greater the importance then of examining whether our legal performance was satisfactory, and the greater the importance that we ourselves ordain re-examination of our justice system, rather than allowing any entity outwith Scotland to do so. Then if errors are found we can at least be seen to be addressing them for ourselves.
However, within Scotland herself these factors themselves are also complex, for the relatively small enclaves of Scottish law and investigative police must act, and be seen to act objectively and not in any attempt at self-justification. We must not lose sight of one major criticism of the Zeist trial, namely that failures of the Crown Office as prosecuting authority in the sharing of material with the defence, was one of the major factors that seemed to make the trial unacceptable as a fair arena in which to try the case. We must also be aware that some of those directly involved in many of the processes required for this court to function, from the Lord Advocate of the day downwards, have by now evolved into major players in the Scottish legal system. The same applies in the police forces involved. The revelations from the McKie fingerprint case give great cause for concern about possible attempts at self-justification from both the legal and police communities in Scotland.
It is of paramount importance that any inquiry is seen to be outside the circles of individual and corporate influence within Scotland which might otherwise be accused of having invalidated the objectivity of such an inquiry. Meeting this requirement might mean the appointment by the Scottish Government of a chairman of inquiry of acknowledged impartiality from outside Scotland. As we shall see there are plenty of materials and personnel within Scotland upon which a meaningful inquiry could be based.
Back in 1989, the UK relatives of the dead (‘UK Families-Flight 103’) were soon in possession of a number of prior warnings which had been received by the British Government well before the disaster, but their requests to the Westminster Government to set up an immediate inquiry after protection of the aircraft had all too obviously failed, were ignored. Lady Thatcher, Prime Minister at the time, refused even to meet to discuss an inquiry, and the pattern of rejecting any objective inquiry has been followed by every British Prime Minister since.
As was mandatory under Scots law, since the aircraft crew had ‘perished in their place of work’, a Fatal Accident Inquiry (FAI) had been set up at Dumfries. In retrospect it was unfortunate, yet entirely proper, that (the late) Sheriff Principal Mowat who led that hearing instructed the FAI that it was to accept that ‘the bomb had arrived at Heathrow from Frankfurt'. This was to be the limit of the FAI’s remit in examining the origins of the disaster, and was in line with the current state of the police investigation at that time, which of course had to be protected, in view of hoped for impending prosecutions.
In spite of this arbitrary acceptance of whence the bomb 'must' have come, the FAI did however tell us relatives that the aircraft had been under the host state protection of the UK at all relevant times on the ground at Heathrow, and that the disaster had been preventable. It is very unfortunate that the question of how the bomb actually got into Heathrow and onto the plane is now seen by many observers as being misrepresented at Zeist. If that turns out to be the case, then a main instruction for the FAI would appear to have been unjustified itself, requiring review of some aspects of the FAI hearings. Much of the work of the FAI was centred upon how passenger baggage was handled within Heathrow airport, and upon the performance of the UK Department of Transport in securing baggage there. Should it emerge in an inquiry or further appeal that the bomb may not have been introduced via the Frankfurt flight after all, but through the Heathrow break-in (vide infra) then it would be necessary to re-examine the question of UK failure to prevent the tragedy in terms of Heathrow perimeter security, rather than in terms of internal baggage handling methods at the airport. The task of a Scottish FAI is to determine the factors contributing to the death(s)
There is well informed criticism now of the whole concept of the bomb having come from Malta. Worse, information concerning a break-in to highly relevant parts of Heathrow during the small hours of the night before Lockerbie was withheld from the Zeist trial court until after the verdict had been reached. How this came about would have to be included in any meaningful inquiry into the probity of the trial, and would also have implications for the findings of the FAI, specifically in terms of the UK's responsibility to protect flights loading at Heathrow airport. In this respect the interests of 'UK Families-Flight 103' are broader than the petition by JFM which centres specifically upon the Zeist verdict. The people of Scotland however should also have an interest as to how this aircraft with its loaded bomb came to enter Scottish airspace that night, and rain death upon 11 of them in their homes in Lockerbie. Since the role of the protection offered to Pan Am 103 at Heathrow were addressed by the Scottish FAI, they must also fall within the remit of a Scottish investigation of the disaster.
Told by a former British Foreign Secretary that there was excellent evidence against the accused and none against any other country than Libya, by the time I entered the Zeist court I was expecting to see two of the murderers brought to justice.
Meanwhile we, in 'UK Families-Flight 103', strengthened by the findings of Scotland’s FAI that the disaster had been preventable, are still waiting for explanations from the Westminster Government as to why they failed to protect the lives of our families. The bomb which crossed the Scottish border that night in the belly of the 747 appeared to conform to those described in such detail in the warnings received in good time by the UK Government beforehand. This issue of the failure of protection at Heathrow may lie outwith Scottish jurisdiction, but the performance and findings of the two Scottish Court proceedings at Dumfries and Zeist lie entirely within Scotland’s sphere of responsibility, the latter being central to the question of whether Mr Megrahi’s conviction was or was not justified. JFM’s petition therefore centres upon the Zeist court and its findings.
Following some 18 months of official investigation immediately after the disaster, the finger seemed to point to Iran, seeking revenge, by using a Syrian terror group as mercenaries. having lost an airbus containing some 290 individuals shot down by a US missile cruiser six months before Lockerbie, the captain of the cruiser being presented with a medal following his return to the USA.
Then suddenly in late 1991 indictments were issued simultaneously in Edinburgh and Washington against two of Libya’s citizens.
There followed for the relatives years of hard work attempting to persuade Libya to allow the two to be tried under Scots law. These efforts were strongly supported by the then Professor of Scots at the University of Edinburgh, Robert Black QC and by Nelson Mandela, and many others, but involved multiple trips to talk to Colonel Gaddafi. The first of these was made by myself alone and in great fear, but two others were made jointly with Professor Black, who was himself the originator of the ‘Scottish court in a neutral country' concept.
Together with one other UK relative, I watched the whole of the evidence unfold at Zeist, and though only a layman, to my amazement as the case unfolded it seemed to me that the evidence was failing to support the involvement of either of the accused in the atrocity, let alone the island of Malta as the point of origin of the bomb. The second Libyan suspect, Mr Khalifa Fahima, was accused of conspiring with Mr Megrahi to cause the disaster but was found Not Guilty: a remarkable finding in view of the availability of the Scottish verdict of Not Proven.
Then came the evidence of a German forensic officer who explained to the court the nature of bombs found in the hands of a terror group, but not all confiscated, in Germany, two months before Lockerbie. He explained that the bombs were of Syrian provenance, from an Iranian linked terror group, the PFLP-GC in Damascus. He also carefully explained how these bombs, specifically designed to destroy aircraft in flight, were capable of introduction to an airport well in advance of their actual use. He explained too that put into an aircraft they would always explode between 35 and 40 minutes after take-off, by sensing the drop in air pressure, but that they were inert on the ground indefinitely. They were not adjustable. They came predicated always to explode 35-40 minutes after take-off.
Yet these devices could not have arrived by air from Malta as they would have exploded en route. From that point on, and knowing that the flight time for the Lockerbie aircraft had been 38 minutes, I found it hard to believe that Mr Megrahi, allegedly using a sophisticated digital timer from Malta, had risked his device passing through an Air Malta flight, changing planes at Frankfurt and then changing planes again at Heathrow, only to have it explode 38 minutes after take-off from Heathrow as the Lockerbie flight did. Why would he not set it to explode over mid Atlantic since the timing of the device he was alleged to have used was fully under his control? Why risk this devious route those two changes of airplane and so short a flight time out of Heathrow?
But the FAI had told us to assume that the bomb had been flown in from Frankfurt. What were the chances of a simple time-bomb from Malta happening to explode at just the same time after take-off from Heathrow as one of those described by the German forensic officer to the court would have been obligated to do? The hearings seemed permeated with failures to assuage reasonable doubt: a prerequisite supposedly for reaching a guilty verdict under Scots criminal law
There were great difficulties particularly surrounding the evidence given by Toni Gauci, a Maltese shopkeeper alleged to have sold a tranche of clothing later found at the crash site to Mr Megrahi, who he could only say ‘looked a lot like the buyer of the clothes’. The evidence of identification never looked to be of the standard required to incriminate the real perpetrator, yet it was the only supposedly secure proof of Mr Megrahi’s involvement in Malta, there being no evidence to lead as to how he was supposed to have breached security at Luqa airport on the island. Such difficulties and many others will be central to any inquiry into this trial.
It is significant that Professor Black has repeatedly stated that the events and evidence heard in the Zeist trial court itself present difficulties which should have ruled out a guilty verdict under Scottish criminal law, even without reference to events since the verdict was reached. Unlike my lay status, his is a powerful persuasive and professional voice claiming the need for the whole court process to be reviewed if we are to be certain whether justice was delivered for Mr Megrahi or not. Only a few others were prepared openly to express their doubts at first, but re-examination of the evidence and trial transcripts has increased doubts over the validity of the verdict for a number of highly qualified lawyers since. Gareth Peirce, one of Britain’s most respected human rights lawyers is an excellent example of this. Her article in the London Review of Books 'The framing of al-Megrahi' is well worth reading.
After three years of study the Scottish Criminal Case Review Commission (SCCRC) publicly stated that the trial might be a miscarriage of justice, massively increasing the doubts in the minds of many Scots both within and without our legal community.
Yet the current publicly expressed position of the Scottish Justice Minister and of our First Minister is that they have no doubts concerning the verdict. It is not apparent why they should be considered a more reliable source than the SCCRC, whose special task it is to decide such issues, and which spent so long in careful professional examination of this case.
I have made clear that the content of the Zeist court proceedings on their own are widely thought sufficient to require re-examination of the whole court process. However immediately after the verdict was reached, a night security guard complained to the Zeist defence team that his discovery of a break-in at Heathrow airport during the night preceding Lockerbie had been ignored by the court. It transpired that his discovery had been promptly reported to the Heathrow authorities, and that in January 1989 the security guard himself had been interviewed by the Metropolitan Police Special branch. Though the break-in had occurred close to where the bags for the Lockerbie flight were assembled and to where the facilities used by Iran Air were sited, neither the break-in itself nor the evidence from the interview of the night security guard were made known to the Zeist court, until after the verdict had been reached.
Although this startling new information seemed to fit perfectly as a route through which one of the Syrian automatic air pressure sensitive bombs described above might have been introduced, it did not dislodge the verdict. Paramount among reasons why this was so, revolved round the way that Mr Megrahi’s defence had approached the first appeal. The performance of Mr Megrahi’s defence team at Zeist must of course be re-evaluated by any inquiry.
The emergence of this evidence seemed to fit as if a vital piece of a jig saw into my own belief derived from the German forensic evidence heard in the Zeist court hearings themselves, that one of the Syrian automatic devices was most probably used, with their inevitable 35-40 minute flight time. Here at last was evidence of a credible route for the introduction of one of these devices to Heathrow. A reassuringly simple and satisfying alternative to the weird route allegedly chosen by Mr Megrahi and his bomb from Malta, accepted by the Zeist court.
Surely this was a ‘reasonable doubt’ contradicting the verdict, since if true, Mr Megrahi could not have been involved, having been shown in the court evidence to have been on Malta during the night of the break-in at Heathrow.
At this time there is no known explanation as to why this potentially vital information lay concealed from the trial court. It could be that the Met did not pass it on to the Scots; it could be that the investigating Scottish police chose to ignore it, but at least the Crown office has assured me in writing that they did not know of it prior to the verdict being reached. Here is another interface between UK responsibility and Scottish responsibility. We need to know where responsibility for this amazing lacuna in the main trial court's evidence arose, in pursuit of assessment of the competence or otherwise of the Scottish police investigation, for this investigation was central to the sufficiency of evidence led at Zeist.
I will mention one other development since the trial ended. Following the withdrawal of his appeal, Mr Megrahi’s defence team published a substantial amount of information which presumably would have been among that to be used had the appeal continued. This was not the work of some elusive conspiracy theorist, nor did it appear in one of the less well supported pages of Wikipedia. It was placed on the net by members of Mr Megrahi’s Scottish defence team, all no doubt available to any Scottish inquiry. Among their revelations was the information that the above mentioned Maltese shopkeeper Toni Gauci was observed by one of the investigating Scottish police officers, Harry Bell, to be showing increasing signs of desire to get his hands on a substantial sum in US dollars, to be provided from America ‘if he gave evidence leading to the conviction' of Mr Megrahi. The diary entry was made long before Toni Gauci did come to court to give his evidence. Evidence from other sources suggests that the amount was to be $2,000,000. That would be a life-changing fortune to the keeper of a small Maltese clothing store. The money appears to have come from Washington, from the US ‘Rewards for Justice’ programme, which listed Mr Megrahi’s name among those brought to ‘justice’ by the disbursements of its funds.
This policeman and his diary (which was not seen by the Zeist court, although its existence was known to it) should also be available for a suitably empowered inquiry to examine.
It seems to me therefore that there is no shortage of aspects to this case which lie within reach of an appropriately empowered Scottish inquiry. It is not the position of JFM that the verdict against Mr Megrahi was wrong, simply that it is so set about with legitimate and accessible doubt that it must now be re-examined, if we in Scotland are to retain confidence in our judicial system and its impartiality, and if we are to be sure that Mr Megrahi has received justice at our hands.
None of the above, bears upon the decision of our Justice Secretary Kenny MacAskill to allow Mr Megrahi’s release on compassionate grounds in 2009. I was privileged to meet with Kenny before he made his decision and urged him to use the established precedent in Scots law to allow the desperately sick man home. It did not even require the withdrawal of his appeal which we hoped would fully review the verdict. I believe Kenny’s decision was a brave one, and of course it has brought vile criticism upon him from the USA, where there is expression of a hope that Mr Megrahi will quickly die and even preferably in pain. These are voices baying for vengeance.
Personally I believe we should be proud of Kenny’s decision and of the capacity of our legal system to exhibit compassion. Speaking as a doctor for a moment, I would say that the relief of the misery of being segregated from his family and desperately sick in an alien prison cell, all because of a horrible slaughter for which he may bear no responsibility, was the major reason for his much prolonged survival thus far in Tripoli. That gave me the joy of meeting him once more with his loving family in his hospital room in Tripoli last month.
You will remember that I personally am satisfied that Mr Megrahi was simply not involved, and therefore what might have been a supremely difficult moment to test the Christian obligation to try to love one’s enemies, was no problem. I have nothing for which to forgive him. Indeed, the roles are reversed. I campaigned for several years to have this man and his fellow Libyan submit to Scottish law as being a fair system.
Mr Megrahi is a devout Muslim. Yet in his cell just before Christmas 2008 he bought a Christmas card from the prison shop and gave it to me: on it he had written “To doctor Swire and family, please pray for me and my family”. Was that the act of a mass murderer? Should either of us hate the other? I don't think so, but I do believe we should investigate whether or not we in Scotland provided justice for Mr Megrahi at Zeist. I would like to think that we could all pray for him and his family, but for those among us who still believe he may be guilty, that prayer would be so much easier if review of this trial showed him to have been innocent all along. So I think we may pray that justice may be done here and that it be seen to be done by us, the people of Scotland, whom that justice system must faithfully serve in the future.
This meeting was convened by Cardinal O'Brien, following his correspondence with Dr Jim Swire, which in turn had arisen in response to an article published by Cardinal O'Brien in Scotland on Sunday on 8th August 2010. This article had contrasted the position of the judicial systems and punishments of the United Sates with those of Scotland, including the provision for compassion, and discussed their respective relationships to justice and to revenge. The meeting also followed the presentation by Justice for Megrahi (JFM) to the Public Petitions Committee of the Holyrood Parliament, which the Cardinal had attended. My apologies (...) for so long a review of our meeting.
It is the belief of JFM that the verdict against Mr Megrahi and the way in which the court at Zeist reached that verdict are insecure. In addition material released since the verdict by elements of his defence team, and by a UN official observer of the trial (Prof Hans Koechler), together with the limited findings of the SCCRC thus far made public, profoundly undermine confidence that justice has been delivered in this case. Since there were also aspects of the preparation of evidence for use in the court which might have been influenced by the political considerations of states outwith Scotland, the need to review the impartiality of our justice system in this case is greatly augmented.
JFM had therefore mounted the following petition to the Holyrood Parliament:
to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.
This commentary below represents only Dr Jim Swire’s personal comments concerning this meeting, which he felt very privileged to have attended. The meeting was chiefly concerned with Dr Swire attempting to define how he sees the current position over the Lockerbie trial, the trial’s origins and some of the events that followed it. He personally is convinced that the SCCRC were right to announce that they believed this case might have been a miscarriage of justice
Based on his own experiences of this case, Dr Swire himself is satisfied that Mr Megrahi could not have been involved as charged: this differs from the position of JFM, but of course we share the imperative that the whole trial process must be re-examined if we are to be sure what justice for Megrahi should be. Therefore this account is written partly as a personal assessment of the situation, and in the first person.
I hope that each of you three Church leaders may feel able to publish some comment upon the situation discussed here when you have had the opportunity to review the implications with your respective churches, and that whatever these comments may be, they may be made available to your respective congregations, and as widely as possible. Of course you are also at liberty to use all or any representative part of this account in any way you wish, and it is also my hope that you will not object to the publication of this account on The Lockerbie Case blog of Professor Robert Black. Over the question of how justice should serve our community, I believe that this case is best exposed to public view by any possible means, for its implications should concern all of us in Scotland.
The establishment and maintenance of an impartial justice system is fundamental to the health of any civilised community. If the confidence of a community in the impartiality of its justice system is undermined, or indeed is even significantly suspected of having been undermined, the entire community is disadvantaged. Justice must not only be done, it must be seen to be done.
This disaster arose when a Boeing 747 containing 259 passengers and crew and baggage, all loaded at Heathrow and destined for New York, crossed into Scottish airspace over the Solway Firth, at about 7.02 pm on the 21st of December 1988 and exploded over Lockerbie about one minute later with the loss of 270 innocent lives, 11 of them among the people of Lockerbie below. There are therefore immediate questions over where the limits of Scottish legal authority should be set, since the loading of the bomb had occurred in London’s Heathrow airport. Those questions in turn bear upon matters relevant to the present state of devolution between Scotland and England. They also bear inexorably upon aspects of the accumulation and handling of evidence and forensic artefacts for use in the trial. For instance, the UK forensics officers appointed to this Scottish case by UK the authorities had already been very severely criticised by a Lord Chief Justice of England for the unreliability of their evidence in preceding IRA based murder trials in England.
Both the Lockerbie Fatal Accident Inquiry and the Zeist trial were held under Scots law, but their findings reach far over the border and beyond even European boundaries, as does the assembly of evidence and witnesses for their use. The greater the importance then of examining whether our legal performance was satisfactory, and the greater the importance that we ourselves ordain re-examination of our justice system, rather than allowing any entity outwith Scotland to do so. Then if errors are found we can at least be seen to be addressing them for ourselves.
However, within Scotland herself these factors themselves are also complex, for the relatively small enclaves of Scottish law and investigative police must act, and be seen to act objectively and not in any attempt at self-justification. We must not lose sight of one major criticism of the Zeist trial, namely that failures of the Crown Office as prosecuting authority in the sharing of material with the defence, was one of the major factors that seemed to make the trial unacceptable as a fair arena in which to try the case. We must also be aware that some of those directly involved in many of the processes required for this court to function, from the Lord Advocate of the day downwards, have by now evolved into major players in the Scottish legal system. The same applies in the police forces involved. The revelations from the McKie fingerprint case give great cause for concern about possible attempts at self-justification from both the legal and police communities in Scotland.
It is of paramount importance that any inquiry is seen to be outside the circles of individual and corporate influence within Scotland which might otherwise be accused of having invalidated the objectivity of such an inquiry. Meeting this requirement might mean the appointment by the Scottish Government of a chairman of inquiry of acknowledged impartiality from outside Scotland. As we shall see there are plenty of materials and personnel within Scotland upon which a meaningful inquiry could be based.
Back in 1989, the UK relatives of the dead (‘UK Families-Flight 103’) were soon in possession of a number of prior warnings which had been received by the British Government well before the disaster, but their requests to the Westminster Government to set up an immediate inquiry after protection of the aircraft had all too obviously failed, were ignored. Lady Thatcher, Prime Minister at the time, refused even to meet to discuss an inquiry, and the pattern of rejecting any objective inquiry has been followed by every British Prime Minister since.
As was mandatory under Scots law, since the aircraft crew had ‘perished in their place of work’, a Fatal Accident Inquiry (FAI) had been set up at Dumfries. In retrospect it was unfortunate, yet entirely proper, that (the late) Sheriff Principal Mowat who led that hearing instructed the FAI that it was to accept that ‘the bomb had arrived at Heathrow from Frankfurt'. This was to be the limit of the FAI’s remit in examining the origins of the disaster, and was in line with the current state of the police investigation at that time, which of course had to be protected, in view of hoped for impending prosecutions.
In spite of this arbitrary acceptance of whence the bomb 'must' have come, the FAI did however tell us relatives that the aircraft had been under the host state protection of the UK at all relevant times on the ground at Heathrow, and that the disaster had been preventable. It is very unfortunate that the question of how the bomb actually got into Heathrow and onto the plane is now seen by many observers as being misrepresented at Zeist. If that turns out to be the case, then a main instruction for the FAI would appear to have been unjustified itself, requiring review of some aspects of the FAI hearings. Much of the work of the FAI was centred upon how passenger baggage was handled within Heathrow airport, and upon the performance of the UK Department of Transport in securing baggage there. Should it emerge in an inquiry or further appeal that the bomb may not have been introduced via the Frankfurt flight after all, but through the Heathrow break-in (vide infra) then it would be necessary to re-examine the question of UK failure to prevent the tragedy in terms of Heathrow perimeter security, rather than in terms of internal baggage handling methods at the airport. The task of a Scottish FAI is to determine the factors contributing to the death(s)
There is well informed criticism now of the whole concept of the bomb having come from Malta. Worse, information concerning a break-in to highly relevant parts of Heathrow during the small hours of the night before Lockerbie was withheld from the Zeist trial court until after the verdict had been reached. How this came about would have to be included in any meaningful inquiry into the probity of the trial, and would also have implications for the findings of the FAI, specifically in terms of the UK's responsibility to protect flights loading at Heathrow airport. In this respect the interests of 'UK Families-Flight 103' are broader than the petition by JFM which centres specifically upon the Zeist verdict. The people of Scotland however should also have an interest as to how this aircraft with its loaded bomb came to enter Scottish airspace that night, and rain death upon 11 of them in their homes in Lockerbie. Since the role of the protection offered to Pan Am 103 at Heathrow were addressed by the Scottish FAI, they must also fall within the remit of a Scottish investigation of the disaster.
Told by a former British Foreign Secretary that there was excellent evidence against the accused and none against any other country than Libya, by the time I entered the Zeist court I was expecting to see two of the murderers brought to justice.
Meanwhile we, in 'UK Families-Flight 103', strengthened by the findings of Scotland’s FAI that the disaster had been preventable, are still waiting for explanations from the Westminster Government as to why they failed to protect the lives of our families. The bomb which crossed the Scottish border that night in the belly of the 747 appeared to conform to those described in such detail in the warnings received in good time by the UK Government beforehand. This issue of the failure of protection at Heathrow may lie outwith Scottish jurisdiction, but the performance and findings of the two Scottish Court proceedings at Dumfries and Zeist lie entirely within Scotland’s sphere of responsibility, the latter being central to the question of whether Mr Megrahi’s conviction was or was not justified. JFM’s petition therefore centres upon the Zeist court and its findings.
Following some 18 months of official investigation immediately after the disaster, the finger seemed to point to Iran, seeking revenge, by using a Syrian terror group as mercenaries. having lost an airbus containing some 290 individuals shot down by a US missile cruiser six months before Lockerbie, the captain of the cruiser being presented with a medal following his return to the USA.
Then suddenly in late 1991 indictments were issued simultaneously in Edinburgh and Washington against two of Libya’s citizens.
There followed for the relatives years of hard work attempting to persuade Libya to allow the two to be tried under Scots law. These efforts were strongly supported by the then Professor of Scots at the University of Edinburgh, Robert Black QC and by Nelson Mandela, and many others, but involved multiple trips to talk to Colonel Gaddafi. The first of these was made by myself alone and in great fear, but two others were made jointly with Professor Black, who was himself the originator of the ‘Scottish court in a neutral country' concept.
Together with one other UK relative, I watched the whole of the evidence unfold at Zeist, and though only a layman, to my amazement as the case unfolded it seemed to me that the evidence was failing to support the involvement of either of the accused in the atrocity, let alone the island of Malta as the point of origin of the bomb. The second Libyan suspect, Mr Khalifa Fahima, was accused of conspiring with Mr Megrahi to cause the disaster but was found Not Guilty: a remarkable finding in view of the availability of the Scottish verdict of Not Proven.
Then came the evidence of a German forensic officer who explained to the court the nature of bombs found in the hands of a terror group, but not all confiscated, in Germany, two months before Lockerbie. He explained that the bombs were of Syrian provenance, from an Iranian linked terror group, the PFLP-GC in Damascus. He also carefully explained how these bombs, specifically designed to destroy aircraft in flight, were capable of introduction to an airport well in advance of their actual use. He explained too that put into an aircraft they would always explode between 35 and 40 minutes after take-off, by sensing the drop in air pressure, but that they were inert on the ground indefinitely. They were not adjustable. They came predicated always to explode 35-40 minutes after take-off.
Yet these devices could not have arrived by air from Malta as they would have exploded en route. From that point on, and knowing that the flight time for the Lockerbie aircraft had been 38 minutes, I found it hard to believe that Mr Megrahi, allegedly using a sophisticated digital timer from Malta, had risked his device passing through an Air Malta flight, changing planes at Frankfurt and then changing planes again at Heathrow, only to have it explode 38 minutes after take-off from Heathrow as the Lockerbie flight did. Why would he not set it to explode over mid Atlantic since the timing of the device he was alleged to have used was fully under his control? Why risk this devious route those two changes of airplane and so short a flight time out of Heathrow?
But the FAI had told us to assume that the bomb had been flown in from Frankfurt. What were the chances of a simple time-bomb from Malta happening to explode at just the same time after take-off from Heathrow as one of those described by the German forensic officer to the court would have been obligated to do? The hearings seemed permeated with failures to assuage reasonable doubt: a prerequisite supposedly for reaching a guilty verdict under Scots criminal law
There were great difficulties particularly surrounding the evidence given by Toni Gauci, a Maltese shopkeeper alleged to have sold a tranche of clothing later found at the crash site to Mr Megrahi, who he could only say ‘looked a lot like the buyer of the clothes’. The evidence of identification never looked to be of the standard required to incriminate the real perpetrator, yet it was the only supposedly secure proof of Mr Megrahi’s involvement in Malta, there being no evidence to lead as to how he was supposed to have breached security at Luqa airport on the island. Such difficulties and many others will be central to any inquiry into this trial.
It is significant that Professor Black has repeatedly stated that the events and evidence heard in the Zeist trial court itself present difficulties which should have ruled out a guilty verdict under Scottish criminal law, even without reference to events since the verdict was reached. Unlike my lay status, his is a powerful persuasive and professional voice claiming the need for the whole court process to be reviewed if we are to be certain whether justice was delivered for Mr Megrahi or not. Only a few others were prepared openly to express their doubts at first, but re-examination of the evidence and trial transcripts has increased doubts over the validity of the verdict for a number of highly qualified lawyers since. Gareth Peirce, one of Britain’s most respected human rights lawyers is an excellent example of this. Her article in the London Review of Books 'The framing of al-Megrahi' is well worth reading.
After three years of study the Scottish Criminal Case Review Commission (SCCRC) publicly stated that the trial might be a miscarriage of justice, massively increasing the doubts in the minds of many Scots both within and without our legal community.
Yet the current publicly expressed position of the Scottish Justice Minister and of our First Minister is that they have no doubts concerning the verdict. It is not apparent why they should be considered a more reliable source than the SCCRC, whose special task it is to decide such issues, and which spent so long in careful professional examination of this case.
I have made clear that the content of the Zeist court proceedings on their own are widely thought sufficient to require re-examination of the whole court process. However immediately after the verdict was reached, a night security guard complained to the Zeist defence team that his discovery of a break-in at Heathrow airport during the night preceding Lockerbie had been ignored by the court. It transpired that his discovery had been promptly reported to the Heathrow authorities, and that in January 1989 the security guard himself had been interviewed by the Metropolitan Police Special branch. Though the break-in had occurred close to where the bags for the Lockerbie flight were assembled and to where the facilities used by Iran Air were sited, neither the break-in itself nor the evidence from the interview of the night security guard were made known to the Zeist court, until after the verdict had been reached.
Although this startling new information seemed to fit perfectly as a route through which one of the Syrian automatic air pressure sensitive bombs described above might have been introduced, it did not dislodge the verdict. Paramount among reasons why this was so, revolved round the way that Mr Megrahi’s defence had approached the first appeal. The performance of Mr Megrahi’s defence team at Zeist must of course be re-evaluated by any inquiry.
The emergence of this evidence seemed to fit as if a vital piece of a jig saw into my own belief derived from the German forensic evidence heard in the Zeist court hearings themselves, that one of the Syrian automatic devices was most probably used, with their inevitable 35-40 minute flight time. Here at last was evidence of a credible route for the introduction of one of these devices to Heathrow. A reassuringly simple and satisfying alternative to the weird route allegedly chosen by Mr Megrahi and his bomb from Malta, accepted by the Zeist court.
Surely this was a ‘reasonable doubt’ contradicting the verdict, since if true, Mr Megrahi could not have been involved, having been shown in the court evidence to have been on Malta during the night of the break-in at Heathrow.
At this time there is no known explanation as to why this potentially vital information lay concealed from the trial court. It could be that the Met did not pass it on to the Scots; it could be that the investigating Scottish police chose to ignore it, but at least the Crown office has assured me in writing that they did not know of it prior to the verdict being reached. Here is another interface between UK responsibility and Scottish responsibility. We need to know where responsibility for this amazing lacuna in the main trial court's evidence arose, in pursuit of assessment of the competence or otherwise of the Scottish police investigation, for this investigation was central to the sufficiency of evidence led at Zeist.
I will mention one other development since the trial ended. Following the withdrawal of his appeal, Mr Megrahi’s defence team published a substantial amount of information which presumably would have been among that to be used had the appeal continued. This was not the work of some elusive conspiracy theorist, nor did it appear in one of the less well supported pages of Wikipedia. It was placed on the net by members of Mr Megrahi’s Scottish defence team, all no doubt available to any Scottish inquiry. Among their revelations was the information that the above mentioned Maltese shopkeeper Toni Gauci was observed by one of the investigating Scottish police officers, Harry Bell, to be showing increasing signs of desire to get his hands on a substantial sum in US dollars, to be provided from America ‘if he gave evidence leading to the conviction' of Mr Megrahi. The diary entry was made long before Toni Gauci did come to court to give his evidence. Evidence from other sources suggests that the amount was to be $2,000,000. That would be a life-changing fortune to the keeper of a small Maltese clothing store. The money appears to have come from Washington, from the US ‘Rewards for Justice’ programme, which listed Mr Megrahi’s name among those brought to ‘justice’ by the disbursements of its funds.
This policeman and his diary (which was not seen by the Zeist court, although its existence was known to it) should also be available for a suitably empowered inquiry to examine.
It seems to me therefore that there is no shortage of aspects to this case which lie within reach of an appropriately empowered Scottish inquiry. It is not the position of JFM that the verdict against Mr Megrahi was wrong, simply that it is so set about with legitimate and accessible doubt that it must now be re-examined, if we in Scotland are to retain confidence in our judicial system and its impartiality, and if we are to be sure that Mr Megrahi has received justice at our hands.
None of the above, bears upon the decision of our Justice Secretary Kenny MacAskill to allow Mr Megrahi’s release on compassionate grounds in 2009. I was privileged to meet with Kenny before he made his decision and urged him to use the established precedent in Scots law to allow the desperately sick man home. It did not even require the withdrawal of his appeal which we hoped would fully review the verdict. I believe Kenny’s decision was a brave one, and of course it has brought vile criticism upon him from the USA, where there is expression of a hope that Mr Megrahi will quickly die and even preferably in pain. These are voices baying for vengeance.
Personally I believe we should be proud of Kenny’s decision and of the capacity of our legal system to exhibit compassion. Speaking as a doctor for a moment, I would say that the relief of the misery of being segregated from his family and desperately sick in an alien prison cell, all because of a horrible slaughter for which he may bear no responsibility, was the major reason for his much prolonged survival thus far in Tripoli. That gave me the joy of meeting him once more with his loving family in his hospital room in Tripoli last month.
You will remember that I personally am satisfied that Mr Megrahi was simply not involved, and therefore what might have been a supremely difficult moment to test the Christian obligation to try to love one’s enemies, was no problem. I have nothing for which to forgive him. Indeed, the roles are reversed. I campaigned for several years to have this man and his fellow Libyan submit to Scottish law as being a fair system.
Mr Megrahi is a devout Muslim. Yet in his cell just before Christmas 2008 he bought a Christmas card from the prison shop and gave it to me: on it he had written “To doctor Swire and family, please pray for me and my family”. Was that the act of a mass murderer? Should either of us hate the other? I don't think so, but I do believe we should investigate whether or not we in Scotland provided justice for Mr Megrahi at Zeist. I would like to think that we could all pray for him and his family, but for those among us who still believe he may be guilty, that prayer would be so much easier if review of this trial showed him to have been innocent all along. So I think we may pray that justice may be done here and that it be seen to be done by us, the people of Scotland, whom that justice system must faithfully serve in the future.
Sunday, 7 November 2010
Public Petitions Committee hearing on Megrahi petition
[On Tuesday 9 November, the Scottish Parliament's Public Petitions Committee will hold a hearing on the Justice for Megrahi petition. Dr Jim Swire, Mr Iain McKie, Mr Robert Forrester and I have been invited to attend to make a brief presentation and to respond to MSPs' questions.
The Scottish Sunday Express today runs an article on the forthcoming committee hearing. It reads in part:]
Shocking unseen evidence from the Lockerbie bomber’s abandoned appeal is to be presented to Holyrood this week in a bid to prove his innocence.
Campaigners including Professor Robert Black and Dr Jim Swire will use the documents to try and force a Scottish Government inquiry into Abdelbaset Ali Mohmed al-Megrahi’s conviction.
Dr Swire, whose daughter Flora was among the 270 killed in the 1988 atrocity, will introduce previously unseen diaries which could cast doubt on one of the trial’s key witnesses and show he was offered cash for evidence. [RB: The journalist is in error. This material will not be introduced at the committee hearing, which will be concerned simply with what action, if any, should be taken on the petition, NOT with the merits of Abdelbaset Megrahi's conviction. That would be a matter for any inquiry set up as a result of the petition.]
Written by a Scottish detective they reveal police knew from an early stage that Maltese shopkeeper Tony Gauci, whose identification of the bomber was pivotal in the conviction, had been promised an “unlimited” reward by the US.
Dr Swire, who will deliver a plea to ministers on Tuesday, said: “The diaries kept by Detective Inspector Harry Bell show he knew when he was interviewing Tony Gauci he was getting excited about the possibility of a reward.
“This information alone would ordinarily be enough to overturn the conviction. Both Justice Secretary Kenny MacAskill and First Minister Alex Salmond have made public statements saying they have full confidence in the verdict against Megrahi.
“That is an extraordinary situation given the Scottish Criminal Cases Review Commission has ruled there may have been a miscarriage of justice.” He added: “How can politicians say they have total faith in the verdict when the one organisation that Scotland possesses to look into these matters says otherwise? It is an untenable position.”
DI Bell was the Dumfries and Galloway detective who traced a scrap of material which had been wrapped around the bomb to Gauci’s clothes shop in Malta. When Megrahi was finally brought to trial, Gauci identified the Libyan in court as the man who had bought the clothing.
It has since emerged that Gauci received $2million and his brother, Paul, received $1million from the US Department of Justice. DI Bell kept a diary during the investigation, although this was not presented to the three judges at the Lockerbie trial in 2001.
On September 28, 1989, he recorded that the FBI had discussed with the Scottish police an offer of unlimited money to Gauci, with $10,000 being available immediately. On March 5, 1990, he recorded a meeting with the FBI and a Maltese detective to discuss “reward money as a last resort”.
And on January 8, 1992, he said Dana Biehl from the US Department of Justice had offered a $2million reward to Libyan double agent Majid Giaka, who also gave evidence against Megrahi. DI Bell wrote: “He was immediately advised of our concern regarding this. I also clarified with him about the Gauci reward and the response was only if he gave evidence.”
It contradicts police sources who have always insisted the rewards were only “engineered” after the trial to help the Gaucis leave Malta. (...)
At Tuesday’s Holyrood hearing, MSPs will consider for the first time a 1,646-signature petition calling for an independent Lockerbie inquiry. Previously, ministers have maintained such a wide-ranging probe could only be called by Westminster or the United Nations. However, Prof Black, Professor Emeritus of Scots Law at the University of Edinburgh, said: “The reasons the Scottish Government has given for not holding an inquiry are simply not correct.”
The Scottish Sunday Express today runs an article on the forthcoming committee hearing. It reads in part:]
Shocking unseen evidence from the Lockerbie bomber’s abandoned appeal is to be presented to Holyrood this week in a bid to prove his innocence.
Campaigners including Professor Robert Black and Dr Jim Swire will use the documents to try and force a Scottish Government inquiry into Abdelbaset Ali Mohmed al-Megrahi’s conviction.
Dr Swire, whose daughter Flora was among the 270 killed in the 1988 atrocity, will introduce previously unseen diaries which could cast doubt on one of the trial’s key witnesses and show he was offered cash for evidence. [RB: The journalist is in error. This material will not be introduced at the committee hearing, which will be concerned simply with what action, if any, should be taken on the petition, NOT with the merits of Abdelbaset Megrahi's conviction. That would be a matter for any inquiry set up as a result of the petition.]
Written by a Scottish detective they reveal police knew from an early stage that Maltese shopkeeper Tony Gauci, whose identification of the bomber was pivotal in the conviction, had been promised an “unlimited” reward by the US.
Dr Swire, who will deliver a plea to ministers on Tuesday, said: “The diaries kept by Detective Inspector Harry Bell show he knew when he was interviewing Tony Gauci he was getting excited about the possibility of a reward.
“This information alone would ordinarily be enough to overturn the conviction. Both Justice Secretary Kenny MacAskill and First Minister Alex Salmond have made public statements saying they have full confidence in the verdict against Megrahi.
“That is an extraordinary situation given the Scottish Criminal Cases Review Commission has ruled there may have been a miscarriage of justice.” He added: “How can politicians say they have total faith in the verdict when the one organisation that Scotland possesses to look into these matters says otherwise? It is an untenable position.”
DI Bell was the Dumfries and Galloway detective who traced a scrap of material which had been wrapped around the bomb to Gauci’s clothes shop in Malta. When Megrahi was finally brought to trial, Gauci identified the Libyan in court as the man who had bought the clothing.
It has since emerged that Gauci received $2million and his brother, Paul, received $1million from the US Department of Justice. DI Bell kept a diary during the investigation, although this was not presented to the three judges at the Lockerbie trial in 2001.
On September 28, 1989, he recorded that the FBI had discussed with the Scottish police an offer of unlimited money to Gauci, with $10,000 being available immediately. On March 5, 1990, he recorded a meeting with the FBI and a Maltese detective to discuss “reward money as a last resort”.
And on January 8, 1992, he said Dana Biehl from the US Department of Justice had offered a $2million reward to Libyan double agent Majid Giaka, who also gave evidence against Megrahi. DI Bell wrote: “He was immediately advised of our concern regarding this. I also clarified with him about the Gauci reward and the response was only if he gave evidence.”
It contradicts police sources who have always insisted the rewards were only “engineered” after the trial to help the Gaucis leave Malta. (...)
At Tuesday’s Holyrood hearing, MSPs will consider for the first time a 1,646-signature petition calling for an independent Lockerbie inquiry. Previously, ministers have maintained such a wide-ranging probe could only be called by Westminster or the United Nations. However, Prof Black, Professor Emeritus of Scots Law at the University of Edinburgh, said: “The reasons the Scottish Government has given for not holding an inquiry are simply not correct.”
Saturday, 6 November 2010
Professor claims "Section 7 con trick"
[This is the headline over a news item published on the website of Scottish lawyers' magazine The Firm following on from a recent post on this blog. After reproducing the post, The Firm concludes its report as follows:]
John McGovern of the Glasgow Bar Association, solicitor Tony Kelly and the Miscarriages of Justice Organisation have all publicly condemned the measures, introduced without consultation or prior notice to MSPs, and enacted in a single day.
John McGovern of the Glasgow Bar Association, solicitor Tony Kelly and the Miscarriages of Justice Organisation have all publicly condemned the measures, introduced without consultation or prior notice to MSPs, and enacted in a single day.
Friday, 5 November 2010
The section 7 con trick
The Scottish Government has stated that section 7 of the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 (2010 asp 15) was required in order to stem the potential flood of appeals that might have arisen after the Cadder decision through successful applications to the Scottish Criminal Cases Review Commission. This is not so. Section 7 goes much further than was necessary to avoid the floodgates opening.
What follows are the relevant provisions of section 7 as enacted by the Scottish Parliament, followed by a redraft showing all that would actually have been required.
What was enacted
In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings.
All that was required
In determining whether a miscarriage of justice may have occurred the Commission shall not take into account the circumstance that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him, provided that statement was made before 26 October 2010.
What was enacted
(1) Where the Commission has referred a case to the High Court under section 194B of this Act [the Criminal Procedure (Scotland) Act 1995] , the High Court may, despite section 194B(1), reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.
(2) In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.
All that was required
Where the Commission has referred a case to the High Court under section 194B of this Act, the High Court may, despite section 194B(1), reject the reference if the only reason given by the Commission for making the reference is that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him and that statement was made before 26 October 2010.
What follows are the relevant provisions of section 7 as enacted by the Scottish Parliament, followed by a redraft showing all that would actually have been required.
What was enacted
In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings.
All that was required
In determining whether a miscarriage of justice may have occurred the Commission shall not take into account the circumstance that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him, provided that statement was made before 26 October 2010.
What was enacted
(1) Where the Commission has referred a case to the High Court under section 194B of this Act [the Criminal Procedure (Scotland) Act 1995] , the High Court may, despite section 194B(1), reject the reference if the Court considers that it is not in the interests of justice that any appeal arising from the reference should proceed.
(2) In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.
All that was required
Where the Commission has referred a case to the High Court under section 194B of this Act, the High Court may, despite section 194B(1), reject the reference if the only reason given by the Commission for making the reference is that the applicant was not allowed access to a solicitor before making to the police a statement subsequently used in evidence against him and that statement was made before 26 October 2010.
Thursday, 4 November 2010
A commentary on the implications of the Cadder Case
This is the heading over a lengthy article by Robert Forrester (with a contribution from me) just published in the Speakers' Corner section of the Newsnet Scotland website. It discusses in particular the pernicious effects of certain provisions of the emergency legislation enacted by the Scottish Parliament in response to the Supreme Court's decision in the Cadder case. As Mr Forrester says:
"The al-Megrahi/Zeist case has profound ramifications for us all. It raises questions and symbolises issues which strike at the very heart of what we perceive our identity to be. In addressing this matter, JFM [the Justice for Megrahi campaign] seeks to ask exactly what justice is, what it means, whom it exists to serve and what role it ought to be playing in our society.
"If our institutions of government and the civil service persist in failing to look themselves in the mirror and make an honest attempt to take the bull by the horns, they will have only themselves to blame if, by their actions and inaction, the good name of Scottish justice is not redeemed and society further degenerates into a morass of cynicism."
"The al-Megrahi/Zeist case has profound ramifications for us all. It raises questions and symbolises issues which strike at the very heart of what we perceive our identity to be. In addressing this matter, JFM [the Justice for Megrahi campaign] seeks to ask exactly what justice is, what it means, whom it exists to serve and what role it ought to be playing in our society.
"If our institutions of government and the civil service persist in failing to look themselves in the mirror and make an honest attempt to take the bull by the horns, they will have only themselves to blame if, by their actions and inaction, the good name of Scottish justice is not redeemed and society further degenerates into a morass of cynicism."
Megrahi lawyer attacks Bill that axes safety net on right to appeal
[What follow are excerpts from an article in today's edition of The Times. It can be read -- but only, of course, by subscribers -- here.]
A leading human rights lawyer last night alleged that ministers had “pulled up the drawbridge” on victims of miscarriages of justice.
Tony Kelly, best known for representing Abdul Ali Baset al-Megrahi, the convicted Lockerbie bomber, said he was astonished by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill, passed by MSPs in an emergency session last Wednesday, which seemed designed to reduce the number of cases going to appeal. (...)
He said the new law would cut across the powers of the Scottish Criminal Cases Review Commission (SCCRC) to have potential miscarriages of justice reviewed and would discourage individuals from embarking on the appeal process.
“Loud and clear, the message from this legislation is ‘Don’t appeal’,” he said.
His intervention followed the remarks of Robert Black, Professor Emeritus of Law at the University of Edinburgh, who earlier claimed that new legislation created a conflict of interest within the High Court, which had effectively been handed the power to block any appeal.
Section 7 of the Bill deals with references from the SCCRC and says: “In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.”
Mr Kelly said that in relation to “certainty” and “finality”, the SCCRC had been established to deal with cases that were final and certain.
Between 1999 and 2010, it received a total of 1186 cases, completed the review of 1136 cases and referred 97 cases to the High Court for determination. Theoretically, under the terms of the new legislation, all 97 could simply have been turned away by the High Court.
Mr Kelly said: “The SCCRC, when it was set up, was viewed as a safety net, it examined cases that fell out with the normal run of evidence and admissibility. Those included miscarriages of justice — and Scotland has had its fair share of those.
“There was a specific exception from that finality clause — enabling the commission to exercise its discretion in certain cases. How can you possibly pull back from that?”
Mr Kelly, who is visiting professor in human rights law at the University of Strathclyde, added: “Most concerning, is the fact that the High Court has two separate powers.
“It can immediately bounce a reference from the Commission if it doesn’t consider it in the interests of justice, and, in determining any appeal, it has got to have regard to ‘finality’. Loud clear, the message is: ‘Don’t appeal’.” (...)
Mr Kelly said that he was at loss to explain why the Cadder ruling had been extended to the right to appeal.
“The only rationale I can see is that they are pulling up the drawbridge, making it more difficult for people to submit applications to the Commission and for the Commission to refer cases to the High Court,” he said.
“You can talk about individual cases, but this is a blanket, covering every single appellant. It will be much more difficult, there will be fewer appeals.”
John McManus, project officer for Miscarriage of Justice Organisation (Mojo), said the legislation brought to mind the saying: “Who guards the guards?”
He added: “You are asking judges to judge themselves. They have passed verdict. Will they be willing to look at the failings of their own system?
“They seem to be closing the door even more on the appeals process.”
A Scottish Government spokesperson said that it had been obliged to act swiftly following the Supreme Court ruling.
“The Scottish Government has worked closely with the appropriate bodies to prepare for every contingency arising from the case, helping mitigate the impact on the police and justice system in carrying out their day-to -day duties protecting the public and prosecuting crime,” she said.
A leading human rights lawyer last night alleged that ministers had “pulled up the drawbridge” on victims of miscarriages of justice.
Tony Kelly, best known for representing Abdul Ali Baset al-Megrahi, the convicted Lockerbie bomber, said he was astonished by the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill, passed by MSPs in an emergency session last Wednesday, which seemed designed to reduce the number of cases going to appeal. (...)
He said the new law would cut across the powers of the Scottish Criminal Cases Review Commission (SCCRC) to have potential miscarriages of justice reviewed and would discourage individuals from embarking on the appeal process.
“Loud and clear, the message from this legislation is ‘Don’t appeal’,” he said.
His intervention followed the remarks of Robert Black, Professor Emeritus of Law at the University of Edinburgh, who earlier claimed that new legislation created a conflict of interest within the High Court, which had effectively been handed the power to block any appeal.
Section 7 of the Bill deals with references from the SCCRC and says: “In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings.”
Mr Kelly said that in relation to “certainty” and “finality”, the SCCRC had been established to deal with cases that were final and certain.
Between 1999 and 2010, it received a total of 1186 cases, completed the review of 1136 cases and referred 97 cases to the High Court for determination. Theoretically, under the terms of the new legislation, all 97 could simply have been turned away by the High Court.
Mr Kelly said: “The SCCRC, when it was set up, was viewed as a safety net, it examined cases that fell out with the normal run of evidence and admissibility. Those included miscarriages of justice — and Scotland has had its fair share of those.
“There was a specific exception from that finality clause — enabling the commission to exercise its discretion in certain cases. How can you possibly pull back from that?”
Mr Kelly, who is visiting professor in human rights law at the University of Strathclyde, added: “Most concerning, is the fact that the High Court has two separate powers.
“It can immediately bounce a reference from the Commission if it doesn’t consider it in the interests of justice, and, in determining any appeal, it has got to have regard to ‘finality’. Loud clear, the message is: ‘Don’t appeal’.” (...)
Mr Kelly said that he was at loss to explain why the Cadder ruling had been extended to the right to appeal.
“The only rationale I can see is that they are pulling up the drawbridge, making it more difficult for people to submit applications to the Commission and for the Commission to refer cases to the High Court,” he said.
“You can talk about individual cases, but this is a blanket, covering every single appellant. It will be much more difficult, there will be fewer appeals.”
John McManus, project officer for Miscarriage of Justice Organisation (Mojo), said the legislation brought to mind the saying: “Who guards the guards?”
He added: “You are asking judges to judge themselves. They have passed verdict. Will they be willing to look at the failings of their own system?
“They seem to be closing the door even more on the appeals process.”
A Scottish Government spokesperson said that it had been obliged to act swiftly following the Supreme Court ruling.
“The Scottish Government has worked closely with the appropriate bodies to prepare for every contingency arising from the case, helping mitigate the impact on the police and justice system in carrying out their day-to -day duties protecting the public and prosecuting crime,” she said.
A contradiction
Does no-one else see the contradiction present in the current political furore about the air cargo bomb plot and the continued failure of the Scottish, UK and US Governments to mount a full inquiry into the 1988 terrorist outrage at Lockerbie?
Headlines about the current terrorist crisis representing a potential “second Lockerbie” only serve to compound my confusion and fuel thoughts of hypocrisy and self-interest.
How resolute and strong the politicians have sounded this past week in their determination to protect us all from the scourge of terrorism and, yet, when given the opportunity to mount an inquiry into the worst terrorist outrage ever perpetrated on UK soil, this resolve just melts away.
I would have thought that it was in the interests of the fight against terrorism and the credibility of our own Scottish justice system to mount an inquiry into the 1988 outrage, that claimed the lives of 270 innocent victims, so that lessons can be learned and the terrorists will feel less secure in their lairs.
[The above is the text of a letter from Iain A J McKie published in today's edition of The Herald.]
Headlines about the current terrorist crisis representing a potential “second Lockerbie” only serve to compound my confusion and fuel thoughts of hypocrisy and self-interest.
How resolute and strong the politicians have sounded this past week in their determination to protect us all from the scourge of terrorism and, yet, when given the opportunity to mount an inquiry into the worst terrorist outrage ever perpetrated on UK soil, this resolve just melts away.
I would have thought that it was in the interests of the fight against terrorism and the credibility of our own Scottish justice system to mount an inquiry into the 1988 outrage, that claimed the lives of 270 innocent victims, so that lessons can be learned and the terrorists will feel less secure in their lairs.
[The above is the text of a letter from Iain A J McKie published in today's edition of The Herald.]
SCCRC ruling now as effective as a review of Lady GaGa
... I noted this extraordinary claim:
"A Scottish Government spokesman said there was no doubt about the safety of Megrahi’s conviction."
The spokesman’s either uninformed or lying. No doubt? (...) A proclamation quite as bold as their’s, however, should send even the most epistemologically idle thinker into a fit of dubiety. The verdict was based on contradictions, bad procedure and very little evidence. Again, though, you don’t need to trust a cosmic schmuck like me – the Scottish Criminal Cases Review Commission ruled that its safety was just as doubtful as that of a clapped-out Reliant Robin. In laying claim to certitude, then, the spokesman showed lusty contempt for their state’s reviewal procedures. And, considering this largely ignored nugget o’news, why not?
"The Scottish government has been accused of using newly enacted (…) legislation to push through a law that will prevent supporters of the Lockerbie bomber from appealing his case.
"A clause buried in the emergency legislation that followed the British Supreme Court’s ruling on 'the Cadder case' allows High Court judges to have the final word on whether an appeal should be heard on their own ruling on a case."
In other words, if the Review Commission challenges a verdict they’re not mad-keen to revisit they can simply flick it aside and claim it’s "not in the interests of justice". They’re the judge, jury and while not quite executioner they are the appeals court. They’ve made an SCCRC ruling about as effective as a review of, say, Lady GaGa. It might provoke a few ripples on the internet but people, by and large, will act as if it never had been.
[From a recent post by bensix on his blog Back Towards The Locus.]
"A Scottish Government spokesman said there was no doubt about the safety of Megrahi’s conviction."
The spokesman’s either uninformed or lying. No doubt? (...) A proclamation quite as bold as their’s, however, should send even the most epistemologically idle thinker into a fit of dubiety. The verdict was based on contradictions, bad procedure and very little evidence. Again, though, you don’t need to trust a cosmic schmuck like me – the Scottish Criminal Cases Review Commission ruled that its safety was just as doubtful as that of a clapped-out Reliant Robin. In laying claim to certitude, then, the spokesman showed lusty contempt for their state’s reviewal procedures. And, considering this largely ignored nugget o’news, why not?
"The Scottish government has been accused of using newly enacted (…) legislation to push through a law that will prevent supporters of the Lockerbie bomber from appealing his case.
"A clause buried in the emergency legislation that followed the British Supreme Court’s ruling on 'the Cadder case' allows High Court judges to have the final word on whether an appeal should be heard on their own ruling on a case."
In other words, if the Review Commission challenges a verdict they’re not mad-keen to revisit they can simply flick it aside and claim it’s "not in the interests of justice". They’re the judge, jury and while not quite executioner they are the appeals court. They’ve made an SCCRC ruling about as effective as a review of, say, Lady GaGa. It might provoke a few ripples on the internet but people, by and large, will act as if it never had been.
[From a recent post by bensix on his blog Back Towards The Locus.]
Wednesday, 3 November 2010
Spinner accuses Scottish Government of spinning
[What follows is the text of a press release dated 1 November from Senator Robert Menendez.]
Scottish government authorities today revealed that Abdelset Ali Mohmed al-Megrahi had a 50% chance of living longer than the three month prognosis and that the three month figure was an estimate or “median survival time” rather than al Megrahi’s life expectancy (Click here for news report: http://www.heraldscotland.com/news/politics/government-admits-megrahi-always-had-50-50-chance-of-living-past-three-months-1.1064925). Senator Menendez released the following statement in response:
“Scottish authorities are engaged in revisionist history to try to explain the embarrassing fact that al-Megrahi is still alive well over a year after his release. Their recent admission shows that they ignored the Scottish Prison Service guidelines for compassionate release. We know from expert testimony that it was absurd to think al-Megrahi had three months to live when he was released. Every month that goes by makes the Scottish and British decision to release a mass murderer on compassionate grounds more egregious. This is a tragedy no matter how hard they try to spin this story.”
Scottish government authorities today revealed that Abdelset Ali Mohmed al-Megrahi had a 50% chance of living longer than the three month prognosis and that the three month figure was an estimate or “median survival time” rather than al Megrahi’s life expectancy (Click here for news report: http://www.heraldscotland.com/news/politics/government-admits-megrahi-always-had-50-50-chance-of-living-past-three-months-1.1064925). Senator Menendez released the following statement in response:
“Scottish authorities are engaged in revisionist history to try to explain the embarrassing fact that al-Megrahi is still alive well over a year after his release. Their recent admission shows that they ignored the Scottish Prison Service guidelines for compassionate release. We know from expert testimony that it was absurd to think al-Megrahi had three months to live when he was released. Every month that goes by makes the Scottish and British decision to release a mass murderer on compassionate grounds more egregious. This is a tragedy no matter how hard they try to spin this story.”
An outrage that should not happen in any civilised country
["Emergency law ‘may prevent Lockerbie bomber appeal’" is the headline over an article in today's edition of The Times (which can be accessed here -- but only, of course, by subscribers). It reads in part:]
The Scottish government has been accused of using newly enacted (...) legislation to push through a law that will prevent supporters of the Lockerbie bomber from appealing his case.
A clause buried in the emergency legislation that followed the British Supreme Court’s ruling on “the Cadder case” allows High Court judges to have the final word on whether an appeal should be heard on their own ruling on a case.
Critics of the legislation say this represents a clear conflict of interest for the High Court, in its dealings with the Scottish Criminal Cases Review Commission (SCCRC), while supporters of Abdul Baset Ali al-Megrahi believe the new modus operandi will present an almost insuperable obstacle to an appeal against his conviction being heard.
“Section 7 [of the new legislation] would appear to place an additional hurdle in the path of any such attempt,” said Robert Black, Professor Emeritus of Law at the University of Edinburgh.
“Even if it wasn’t done for that reason, it is inherently undesirable. It is outrageous that a Scottish government, that any responsible government, should have proposed such legislation and it is outrageous that any responsible parliament should have passed it.”
Professor Black’s intervention came a week after the Supreme Court ruled that Scottish arrest and detention laws did not comply with the European Convention on Human Rights (ECHR). (...)
Professor Black said emergency legislation had been unnecessary and the result was “absolutely astonishing and disgraceful”.
Critics of the legislation are outraged that it could prevent the Lockerbie case being heard again by the High Court, should some of the families of victims killed in the 1988 atrocity resurrect Megrahi’s appeal, as they they intend. The Libyan, who is dying of cancer, was convicted of the bombing in 2001.
Professor Black said: “The effect [of the new law] is that even if the SCCRC now says there may have been a miscarriage of justice and it is in the interests of justice that there should be an appeal, the Appeal Court itself can say, ‘We refuse to accept the reference’. That is the same body — namely the High Court — whose initial decision the SCCRC has said may amount to a miscarriage of justice. In that case, the High Court can turn round and say, ‘We, the court you are accusing of perhaps having perpetrated a miscarriage of justice, say: ‘Go away and get stuffed.’ That is an outrage and should not happen in any civilised country.”
John McGovern, the president of the Glasgow Bar Association, dismissed the legislation as “civil service law”, and he too was at a loss to explain its rationale for Section 7.
“The SCCRC is very independent. Why they have used this Act to take away its independence and place it in the hands of the Appeal Court, I don’t know. It could well be an excuse to curb its powers,” he said.
The Scottish government’s kneejerk reaction to the decision of the UK Supreme Court had been a huge mistake, he added.
“To present a Bill at 9am, to debate at 2pm and to legislate at 7pm for an Act which restricted fundamental, centuries-old appeal rights in Scotland was unfortunate, to say the least. There was no emergency with Cadder,” he said.
A Scottish government spokesman said it was essential for the Justice Secretary to act immediately the Supreme Court had ruled that Scottish law was incompatible with European law, and the Act was entirely a response to the Cadder ruling.
“It is beyond question that there was need for legislation that was compliant with the ECHR,” he added.
The Scottish government has been accused of using newly enacted (...) legislation to push through a law that will prevent supporters of the Lockerbie bomber from appealing his case.
A clause buried in the emergency legislation that followed the British Supreme Court’s ruling on “the Cadder case” allows High Court judges to have the final word on whether an appeal should be heard on their own ruling on a case.
Critics of the legislation say this represents a clear conflict of interest for the High Court, in its dealings with the Scottish Criminal Cases Review Commission (SCCRC), while supporters of Abdul Baset Ali al-Megrahi believe the new modus operandi will present an almost insuperable obstacle to an appeal against his conviction being heard.
“Section 7 [of the new legislation] would appear to place an additional hurdle in the path of any such attempt,” said Robert Black, Professor Emeritus of Law at the University of Edinburgh.
“Even if it wasn’t done for that reason, it is inherently undesirable. It is outrageous that a Scottish government, that any responsible government, should have proposed such legislation and it is outrageous that any responsible parliament should have passed it.”
Professor Black’s intervention came a week after the Supreme Court ruled that Scottish arrest and detention laws did not comply with the European Convention on Human Rights (ECHR). (...)
Professor Black said emergency legislation had been unnecessary and the result was “absolutely astonishing and disgraceful”.
Critics of the legislation are outraged that it could prevent the Lockerbie case being heard again by the High Court, should some of the families of victims killed in the 1988 atrocity resurrect Megrahi’s appeal, as they they intend. The Libyan, who is dying of cancer, was convicted of the bombing in 2001.
Professor Black said: “The effect [of the new law] is that even if the SCCRC now says there may have been a miscarriage of justice and it is in the interests of justice that there should be an appeal, the Appeal Court itself can say, ‘We refuse to accept the reference’. That is the same body — namely the High Court — whose initial decision the SCCRC has said may amount to a miscarriage of justice. In that case, the High Court can turn round and say, ‘We, the court you are accusing of perhaps having perpetrated a miscarriage of justice, say: ‘Go away and get stuffed.’ That is an outrage and should not happen in any civilised country.”
John McGovern, the president of the Glasgow Bar Association, dismissed the legislation as “civil service law”, and he too was at a loss to explain its rationale for Section 7.
“The SCCRC is very independent. Why they have used this Act to take away its independence and place it in the hands of the Appeal Court, I don’t know. It could well be an excuse to curb its powers,” he said.
The Scottish government’s kneejerk reaction to the decision of the UK Supreme Court had been a huge mistake, he added.
“To present a Bill at 9am, to debate at 2pm and to legislate at 7pm for an Act which restricted fundamental, centuries-old appeal rights in Scotland was unfortunate, to say the least. There was no emergency with Cadder,” he said.
A Scottish government spokesman said it was essential for the Justice Secretary to act immediately the Supreme Court had ruled that Scottish law was incompatible with European law, and the Act was entirely a response to the Cadder ruling.
“It is beyond question that there was need for legislation that was compliant with the ECHR,” he added.
Monday, 1 November 2010
Cadder provision creates “new hurdle” to Megrahi appeal
[This is the headline over an article just published on the website of Scottish lawyers' magazine The Firm. It reads as follows:]
A provision in the emergency legislation introduced following the Cadder case has created “an entirely new hurdle” for the planned resurrection of Abdelbaset Ali Mohmed Al Megrahi’s appeal by the bereaved Pan Am 103 families.
The new Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill was rushed through all its Parliamentary stages on 27 October, under the justification that its emergency procedures required to be enacted swiftly in the wake of the Cadder case, which ruled that Scots arrest procedure was incompatible with EU law.
Professor Robert Black QC says section 7 of the new Act, which has not yet received Royal Assent, creates a conflict of interest for the High Court, which is now charged with considering “the need for finality and certainty in criminal proceedings" when it decides whether to accept a referral from the SCCRC.
It could also prevent the case being heard again by the High Court when the families resurrect Megrahi's dropped appeal, as they have announced they plan to do.
“It is easy to see how such a provision could be used by the SCCRC and by the High Court if Jim Swire and other Lockerbie relatives were to seek to have Megrahi's conviction reviewed,“ says Black.
“This is such a major and fundamental change in the law that it should not be made in emergency legislation, where there has been no opportunity for public consultation.”
On Friday, the President of the Glasgow Bar Association also railed at the lack of consultation, and claimed there was not even an emergency that would justify the hasty passage of the legislation.
"There is no emergency, nor has there ever been over Cadder. But it is convenient to bury jealously guarded principles and conventions of Scots Law, which don’t suit, by creating one,” said John McGovern.
“When we have a Parliament presented with a Bill of this significance, with a debating vent so narrow, that decent, smart parliamentarians fail to understand what they’re being asked to vote upon, then we have civil service law."
Professor Black says the new provision might now tip the scales in favour of the SCCRC not referring potential miscarriage of justice cases to the High Court for a review.
“The SCCRC is now told that in considering whether to refer back for an appeal, it must take into account 'the need for finality and certainty in criminal proceedings'. This, I am sure, was always ONE of the factors that the SCCRC put into the balance when considering whether it was 'in the interests of justice' to refer back. But it is now specifically instructed to take it into account. In an evenly balanced case, it might now tip the scales in favour of not referring back,” Black said.
“Much more important is the power given to the High Court (sitting as the Criminal Appeal Court). Even where the SCCRC has decided to refer back, the High Court, in turn, can refuse to accept the reference, having regard to 'the need for finality and certainty in criminal proceedings'. This is an entirely new hurdle that has to be jumped.
“And remember that in almost every case that the SCCRC refers back, it will be an earlier decision of the High Court itself that is being said may amount to a miscarriage of justice. So the very body whose decision is being impugned can decide not to hear the challenge to that decision on the basis of 'the need for finality and certainty in criminal proceedings'.
Black warns that this creates a conflict of interest, and a dilemma for the High Court which has to act as a judge in its own cause, and create doubt about whether justice was “being seen to be done“.
A provision in the emergency legislation introduced following the Cadder case has created “an entirely new hurdle” for the planned resurrection of Abdelbaset Ali Mohmed Al Megrahi’s appeal by the bereaved Pan Am 103 families.
The new Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill was rushed through all its Parliamentary stages on 27 October, under the justification that its emergency procedures required to be enacted swiftly in the wake of the Cadder case, which ruled that Scots arrest procedure was incompatible with EU law.
Professor Robert Black QC says section 7 of the new Act, which has not yet received Royal Assent, creates a conflict of interest for the High Court, which is now charged with considering “the need for finality and certainty in criminal proceedings" when it decides whether to accept a referral from the SCCRC.
It could also prevent the case being heard again by the High Court when the families resurrect Megrahi's dropped appeal, as they have announced they plan to do.
“It is easy to see how such a provision could be used by the SCCRC and by the High Court if Jim Swire and other Lockerbie relatives were to seek to have Megrahi's conviction reviewed,“ says Black.
“This is such a major and fundamental change in the law that it should not be made in emergency legislation, where there has been no opportunity for public consultation.”
On Friday, the President of the Glasgow Bar Association also railed at the lack of consultation, and claimed there was not even an emergency that would justify the hasty passage of the legislation.
"There is no emergency, nor has there ever been over Cadder. But it is convenient to bury jealously guarded principles and conventions of Scots Law, which don’t suit, by creating one,” said John McGovern.
“When we have a Parliament presented with a Bill of this significance, with a debating vent so narrow, that decent, smart parliamentarians fail to understand what they’re being asked to vote upon, then we have civil service law."
Professor Black says the new provision might now tip the scales in favour of the SCCRC not referring potential miscarriage of justice cases to the High Court for a review.
“The SCCRC is now told that in considering whether to refer back for an appeal, it must take into account 'the need for finality and certainty in criminal proceedings'. This, I am sure, was always ONE of the factors that the SCCRC put into the balance when considering whether it was 'in the interests of justice' to refer back. But it is now specifically instructed to take it into account. In an evenly balanced case, it might now tip the scales in favour of not referring back,” Black said.
“Much more important is the power given to the High Court (sitting as the Criminal Appeal Court). Even where the SCCRC has decided to refer back, the High Court, in turn, can refuse to accept the reference, having regard to 'the need for finality and certainty in criminal proceedings'. This is an entirely new hurdle that has to be jumped.
“And remember that in almost every case that the SCCRC refers back, it will be an earlier decision of the High Court itself that is being said may amount to a miscarriage of justice. So the very body whose decision is being impugned can decide not to hear the challenge to that decision on the basis of 'the need for finality and certainty in criminal proceedings'.
Black warns that this creates a conflict of interest, and a dilemma for the High Court which has to act as a judge in its own cause, and create doubt about whether justice was “being seen to be done“.
Sunday, 31 October 2010
Libyan ambassador to Malta speaks on Lockerbie
[What follows is an excerpt from a long interview in the Maltese newspaper The Sunday Times with the recently appointed Libyan ambassador, Dr Saadun Suayeh:]
The single biggest issue, apart from immigration, that has seen the fate of Malta and Libya intertwine is Lockerbie.
The bombing of Pan Am flight 103 in December 1988 over the Scottish town of Lockerbie killed 270 people. It was a brutal terrorist attack that shocked the world and one that saw Malta implicated as the point of departure of the bomb, which eventually destroyed the aircraft.
The blame was pinned down to two Libyan secret service agents, who at the time worked in Malta. Only one of them, Abdelbaset al-Megrahi, was found guilty at a high-profile trial conducted under Scottish laws in Camp Zeist, the Netherlands.
Mr Al-Megrahi was condemned to life imprisonment. However, he was released on compassionate grounds last year amid serious doubts that he may have been wrongly convicted.
Malta has long denied any involvement in the Lockerbie case, insisting that the luggage containing the bomb could have never left the island unaccompanied.
Only last week campaigners, who believe that Mr Al-Megrahi was wrongly convicted, presented a petition to the Scottish Parliament (...) asking for an independent inquiry into the Camp Zeist conclusions.
The search for the truth continues 22 years after the attack but how does Libya feel today about the affair?
Dr Suayeh talks little about the Lockerbie saga. He considers it “a closed chapter” and an issue Libya wants to put behind it.
“We have dealt with Lockerbie very responsibly and transparently and we left it up to the Scottish authorities to decide on Mr Al-Megrahi’s release. We would like to leave it at that,” he says.
As for the campaigners who still seek the truth about what happened on that fateful December night, Dr Suayeh says they are entitled to take what action they deem fit.
In 2003, two years after Mr Al-Megrahi’s conviction, Libya formally accepted responsibility for the actions of its officials and agreed to pay billions in compensation to the families of the Lockerbie victims. It was perceived as an admission of guilt but many felt the underlying motive was Mr Gaddafi’s pragmatic attempt to normalise international relations. Libya has since maintained its innocence.
“We always felt that Libya was wronged by the Lockerbie affair. We always wanted to be law abiding, and all that we hope for now, with this chapter behind us, is to foster better relations with everybody, hoping that truth prevails,” Dr Suayeh says.
The single biggest issue, apart from immigration, that has seen the fate of Malta and Libya intertwine is Lockerbie.
The bombing of Pan Am flight 103 in December 1988 over the Scottish town of Lockerbie killed 270 people. It was a brutal terrorist attack that shocked the world and one that saw Malta implicated as the point of departure of the bomb, which eventually destroyed the aircraft.
The blame was pinned down to two Libyan secret service agents, who at the time worked in Malta. Only one of them, Abdelbaset al-Megrahi, was found guilty at a high-profile trial conducted under Scottish laws in Camp Zeist, the Netherlands.
Mr Al-Megrahi was condemned to life imprisonment. However, he was released on compassionate grounds last year amid serious doubts that he may have been wrongly convicted.
Malta has long denied any involvement in the Lockerbie case, insisting that the luggage containing the bomb could have never left the island unaccompanied.
Only last week campaigners, who believe that Mr Al-Megrahi was wrongly convicted, presented a petition to the Scottish Parliament (...) asking for an independent inquiry into the Camp Zeist conclusions.
The search for the truth continues 22 years after the attack but how does Libya feel today about the affair?
Dr Suayeh talks little about the Lockerbie saga. He considers it “a closed chapter” and an issue Libya wants to put behind it.
“We have dealt with Lockerbie very responsibly and transparently and we left it up to the Scottish authorities to decide on Mr Al-Megrahi’s release. We would like to leave it at that,” he says.
As for the campaigners who still seek the truth about what happened on that fateful December night, Dr Suayeh says they are entitled to take what action they deem fit.
In 2003, two years after Mr Al-Megrahi’s conviction, Libya formally accepted responsibility for the actions of its officials and agreed to pay billions in compensation to the families of the Lockerbie victims. It was perceived as an admission of guilt but many felt the underlying motive was Mr Gaddafi’s pragmatic attempt to normalise international relations. Libya has since maintained its innocence.
“We always felt that Libya was wronged by the Lockerbie affair. We always wanted to be law abiding, and all that we hope for now, with this chapter behind us, is to foster better relations with everybody, hoping that truth prevails,” Dr Suayeh says.
Nationals of 33 countries sign Justice for Megrahi petition
[The following are excerpts from an article by Kurt Sansone in today's edition of the Maltese newspaper The Sunday Times.]
More than 100 Maltese nationals have signed a petition calling on the Scottish government to open an independent inquiry into the only Lockerbie bombing conviction to date.
The petition, signed by nationals from 33 countries, was filed with the Scottish parliament last Tuesday and is piloted by the pressure group Justice for Megrahi. (...) [RB: The petition is still open for signature until 1 November, but the Scottish Parliament's e-petitions website has been out of operation since Thursday, 28 October, this on top of a five-day outage the previous week.]
The online petition attracted 1,649 signatories, a record for any petition ever filed with parliament’s petitions committee, according to Jim Swire, a founder of Justice for Megrahi and the father of Flora, a victim of the worst terrorist act on British soil. (...)
The petition calls on the Scottish Parliament to urge the Scottish government to open an independent inquiry into the 2001 Kamp van Zeist conviction for the bombing of Pan Am flight 103 in December 1988.
Dr Swire told The Sunday Times the ball is in the petitions committee’s court, adding that campaigners will probably be summoned by Scottish MPs to explain the contents of the petition.
“We believe our cause will find some ears but I can’t say how Scottish MPs will react,” Dr Swire said when asked whether he was hopeful the petition would move forward.
However, he pointed out that with the Scottish election in May [2011] the governing Scottish National Party may be willing “to be seen to do something”.
Campaigners, he added, were comforted by the decision of the Scottish Criminal Cases Review Commission in 2007 that the Libyan “may have suffered a miscarriage of justice”. (...)
Investigators had concluded the suitcase containing the bomb that exploded over Scotland was loaded in an unaccompanied luggage on an Air Malta flight to Germany before making its way to London.
Malta has always denied any link with the case.
The luggage was traced back to Mr Al-Megrahi and another Libyan man who at the time were Libyan secret service agents working with Libyan Arab airlines in Malta.
The crucial evidence to convict Mr Al-Megrahi was provided by a Maltese shopkeeper, Tony Gauci, from Sliema, who identified him as the person who bought the clothes that were found in the luggage.
However, serious doubts have been shed on the credibility of the Maltese shopkeeper.
Mr Al-Megrahi’s defence team contended that the Maltese witness was paid “in excess of $2 million”, while his brother was paid “in excess of $1 million” for cooperating. Neither has ever denied receiving payment.
Twenty-two years on from the bombing, Dr Swire remains convinced of the Libyan’s innocence, saying he was converted by the evidence he heard in the main trial.
In presenting the petition, the campaigners said the “perverse judgement not only resulted in the conviction of Mr al-Megrahi, but maligned Germany, Libya, Malta and the UK.”
It also quotes Foreign Minister Tonio Borg as saying: “We have no proof that these two Libyan suspects were involved in anything illegal in Malta regarding this case, particularly the placing of this bomb on Air Malta Flight 180.”
More than 100 Maltese nationals have signed a petition calling on the Scottish government to open an independent inquiry into the only Lockerbie bombing conviction to date.
The petition, signed by nationals from 33 countries, was filed with the Scottish parliament last Tuesday and is piloted by the pressure group Justice for Megrahi. (...) [RB: The petition is still open for signature until 1 November, but the Scottish Parliament's e-petitions website has been out of operation since Thursday, 28 October, this on top of a five-day outage the previous week.]
The online petition attracted 1,649 signatories, a record for any petition ever filed with parliament’s petitions committee, according to Jim Swire, a founder of Justice for Megrahi and the father of Flora, a victim of the worst terrorist act on British soil. (...)
The petition calls on the Scottish Parliament to urge the Scottish government to open an independent inquiry into the 2001 Kamp van Zeist conviction for the bombing of Pan Am flight 103 in December 1988.
Dr Swire told The Sunday Times the ball is in the petitions committee’s court, adding that campaigners will probably be summoned by Scottish MPs to explain the contents of the petition.
“We believe our cause will find some ears but I can’t say how Scottish MPs will react,” Dr Swire said when asked whether he was hopeful the petition would move forward.
However, he pointed out that with the Scottish election in May [2011] the governing Scottish National Party may be willing “to be seen to do something”.
Campaigners, he added, were comforted by the decision of the Scottish Criminal Cases Review Commission in 2007 that the Libyan “may have suffered a miscarriage of justice”. (...)
Investigators had concluded the suitcase containing the bomb that exploded over Scotland was loaded in an unaccompanied luggage on an Air Malta flight to Germany before making its way to London.
Malta has always denied any link with the case.
The luggage was traced back to Mr Al-Megrahi and another Libyan man who at the time were Libyan secret service agents working with Libyan Arab airlines in Malta.
The crucial evidence to convict Mr Al-Megrahi was provided by a Maltese shopkeeper, Tony Gauci, from Sliema, who identified him as the person who bought the clothes that were found in the luggage.
However, serious doubts have been shed on the credibility of the Maltese shopkeeper.
Mr Al-Megrahi’s defence team contended that the Maltese witness was paid “in excess of $2 million”, while his brother was paid “in excess of $1 million” for cooperating. Neither has ever denied receiving payment.
Twenty-two years on from the bombing, Dr Swire remains convinced of the Libyan’s innocence, saying he was converted by the evidence he heard in the main trial.
In presenting the petition, the campaigners said the “perverse judgement not only resulted in the conviction of Mr al-Megrahi, but maligned Germany, Libya, Malta and the UK.”
It also quotes Foreign Minister Tonio Borg as saying: “We have no proof that these two Libyan suspects were involved in anything illegal in Malta regarding this case, particularly the placing of this bomb on Air Malta Flight 180.”
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