Irreparable damage to the rule of law in Scotland

[On this date in 2007 Professor Hans Köchler issued a statement on the decision by the Scottish Criminal Cases Review Commission to refer the conviction of Abdelbaset Megrahi back to the High Court of Justiciary for a further appeal. It reads as follows:]

Dr Hans Köchler, President of the International Progress Organization (IPO) and Head of the Dept. of Philosophy at the University of Innsbruck, Austria, served from 5 May 2000 until 14 March 2002 as international observer at the Scottish Court in the Netherlands ("Lockerbie Court"). He had been nominated by the Secretary-General of the United Nations,  Mr Kofi Annan, on the basis of Security Council resolution 1192 (1998). Dr Koechler issued two comprehensive analytical reports after the Trial (3 February 2001) and after the Appeal (26 March 2002) respectively, which the International Progress Organization submitted to the United Nations.

In his reports, Dr Köchler was highly critical of the proceedings and questioned the fairness and impartiality of both the Trial and Appeal Courts. In an interview for the BBC on 14 March 2002, he described the dismissal of the appeal as a "spectacular miscarriage of justice" (BBC News World Edition). At the time, the Scottish judicial establishment had tried to dismiss Dr Köchler's conclusion as a misunderstanding of the Scottish judicial system. The decision of the Scottish Criminal Cases Review Commission (SCCRC) to refer the case of Abdelbaset Ali Mohamed Al Megrahi back to the Scottish High Court of Justiciary has - after additional investigations lasting more than five years - confirmed Dr Köchler's original concerns. In particular, the SCCRC had doubted the credibility of one of the key witnesses, Maltese shop owner Tony Gauci, stating in its News Release of 28 June 2007 "that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items [clothes that were found in the wreckage of the plane] from Mary's House [in Malta] took place on 7 December 1988." Exactly this point had been stated in some detail by Dr Köchler in his appeal report of 26 March 2002 (!) (Paras 10, 15 and 16).

However, in interviews conducted yesterday by representatives of the Scottish, British and German media, Dr. Koechler expressed his surprise at the Commission's focus of review and apparent bias in favour of the judicial establishment: "In giving exoneration to the police, prosecutors, and forensic staff, I think they show their lack of independence. No officials to be blamed, simply a Maltese shopkeeper." (The Herald, Glasgow, 29 June 2007)

****

The decision, announced by the Scottish Criminal Cases Review Commission (SCCRC) on 28 June 2007, to refer Mr Al Megrahi's case back to the High Court of Justiciary has been long overdue and has created the chance for a second legal evaluation by an Appeal Court of five Scottish judges.

It is to be hoped that, in view of the far-reaching political implications and international ramifications of the case, this time the judges will act in full independence and that the proceedings will meet the standards of fair trial under the European Convention for the Protection of Human Rights and Fundamental Freedoms. If this final chance to put things right and conduct criminal proceedings in a fair and fully transparent manner is missed, irreparable damage will be done to the rule of law in Scotland and to the principle of "devolution" of important areas of public administration from the United Kingdom level to that of Scotland.

The undersigned would like to restate the point he made in his appeal report in 2002, namely that the final arbiter of the fairness of Scottish criminal proceedings (after all means of review in the domestic context have been exhausted) is the European Court of Human Rights (Strasbourg) that exercises its jurisdiction on the basis of the European Human Rights Convention.

Regrettably, the SCCRC has not disclosed all its grounds of referral and, in its news release of 28 June, has basically concentrated on the dubious role of Maltese witness Tony Gauci - while at the same time engaging in a rather strange exercise of "preventive exoneration" of certain people belonging to the British and/or Scottish police and judicial system whose behaviour, as pointed out in the undersigned's reports and confirmed, in the meantime, in several affidavits, has been highly questionable and may have detrimentally affected the fairness of the proceedings (see IPO News Release of 14 October 2005). It is particularly difficult to comprehend why the SCCRC would take great pains to "absolve" Mr Megrahi's defense team during the trial and first appeal from any criticisms in regard to their performance in the interest of their client (para 4.1 of the News Release of the SCCRC). The lack of integrity of the defense was obvious to the undersigned during the two years he observed the proceedings at Camp Zeist in the Netherlands and was the object of a conversation of the undersigned with the appellant (Mr Megrahi), arranged, at the latter's request, by the Scottish Court Service at HM Prison Zeist.

In view of the flawed trial and appeal proceedings, now acknowledged, at least in part, by the Scottish Criminal Cases Review Commission, and for the sake of transparency, the report of the Commission should be made public in its entirety. The victims' families as well as the international public deserve to know the full truth about the reasons of referral of Mr Al Megrahi's case back to the High Court of Justiciary.

In conformity with the principle of transparency of the proceedings that was guiding United Nations Security Council resolution 1192 (1998) (operative para 6), the proceedings of the Scottish Appeal Court should again be witnessed by international observers.

The undersigned renews his call for a full and independent public inquiry of the Lockerbie case and its handling by the Scottish judiciary as well as the British and US political and intelligence establishments. In order to avoid bias, such an investigation will require the participation of additional legal experts, to be appointed by the United Nations Organization, from countries that are not involved in the Lockerbie dispute.

Those politicians in the United Kingdom and the United States who have proclaimed an international "war on terror" will not be credible in their strategy if they prevent a full investigation into the causes of the explosion of Pan Am flight 103 over Lockerbie. All those responsible, without exception,  must be brought to justice.

(signed) Dr Hans Köchler

• Dr Hans Köchler's Trial Report of 2001
• Dr Hans Köchler's Appeal Report of 2002
• Hans Köchler and Jason Subler (eds), The Lockerbie Trial. Documents Related to the IPO Observer Mission

Lockerbie case: Call for independent investigation

[What follows is the text of a press release issued on behalf of Professor Hans Köchler on this date in 2007:]

United Nations observer Dr. Hans Köchler sends letters to Scottish and British officials

Vienna, Austria, 4 July 2007

P/RE/20453c-is

Dr Hans Köchler, the international observer appointed by the United Nations to the Lockerbie trial in the Netherlands, today reiterated his call for a full and independent public inquiry of the Lockerbie case, a measure which he had initially suggested in April 2002.

In letters sent to the First Minister of Scotland, Alex Salmond, the British Foreign Secretary, David Miliband, the British Home Secretary, Jacqui Smith, and the Minister for Africa, Asia and the UN, Mark Malloch Brown, Dr Köchler transmitted his statement on last week's decision of the Scottish Criminal Cases Review Commission (SCCRC), in which he emphasized,inter alia, that, in order to avoid bias, an investigation into the handling of the Lockerbie case by the Scottish and British authorities will require the participation of additional legal experts, to be appointed by the United Nations Organization, from countries other than the UK, US and Libya, ie from countries that were not involved in the Lockerbie dispute.

In the statement issued today, the UN observer also expressed his full support for the proposal made by Tam Dalyell, former MP and Father of the House of Commons, to end all doubt with a public inquiry.

In his earlier comprehensive reports on the Lockerbie trial (issued on 3 February 2001) and appeal (issued on 26 March 2002) Dr. Köchler had suspected a miscarriage of justice - a conclusion now also reached by the Scottish Criminal Cases Review Commission ("The Commission is of the view ... that the applicant may have suffered a miscarriage of justice": Dr Graham Forbes, Chairman of the Commission, according to an SCCRC News Release of 28 June 2007).

• IPO news release of 25 April 2002 (Call for public inquiry)
• Dr Hans Köchler's statement on the referral of the case of Abdelbaset Ali Mohamed Al Megrahi to the High Court of Justiciary  
• Web Site of the Lockerbie Observer Mission of Dr Hans Köchler

Flawed trial and appeal proceedings

[What follows is the text of a statement released by Professor Hans Köchler on this date in 2007:]

Vienna, Austria, 29 June 2007/P/HK/20429

Dr Hans Köchler, President of the International Progress Organization (IPO) and Head of the Dept. of Philosophy at the University of Innsbruck, Austria, served from 5 May 2000 until 14 March 2002 as international observer at the Scottish Court in the Netherlands ("Lockerbie Court"). He had been nominated by the Secretary-General of the United Nations,  Mr Kofi Annan, on the basis of Security Council resolution 1192 (1998). Dr Köchler issued two comprehensive analytical reports after the Trial (3 February 2001) and after the Appeal (26 March 2002) respectively, which the International Progress Organization submitted to the United Nations.

In his reports, Dr Köchler was highly critical of the proceedings and questioned the fairness and impartiality of both the trial and appeal courts. In an interview for the BBC on 14 March 2002, he described the dismissal of the appeal as a "spectacular miscarriage of justice" (BBC News World Edition). At the time, the Scottish judicial establishment had tried to dismiss Dr Köchler's conclusion as a misunderstanding of the Scottish judicial system. The decision of the Scottish Criminal Cases Review Commission (SCCRC) to refer the case of Abdelbaset Ali Mohamed Al Megrahi back to the Scottish High Court of Justiciary has - after additional investigations lasting more than five years - confirmed Dr Köchler's original concerns. In particular, the SCCRC had doubted the credibility of one of the key witnesses, Maltese shop owner Tony Gauci, stating in its News Release of 28 June 2007 "that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items [clothes that were found in the wreckage of the plane] from Mary's House [in Malta] took place on 7 December 1988." Exactly this point had been stated in some detail by Dr Köchler in his appeal report of 26 March 2002 (!) (paras 10, 15 and 16).

However, in interviews conducted yesterday by representatives of the Scottish, British and German media, Dr Köchler expressed his surprise at the Commission's focus of review and apparent bias in favour of the judicial establishment: "In giving exoneration to the police, prosecutors, and forensic staff, I think they show their lack of independence. No officials to be blamed, simply a Maltese shopkeeper." (The Herald, Glasgow, 29 June 2007)

****

The decision, announced by the Scottish Criminal Cases Review Commission (SCCRC) on 28 June 2007, to refer Mr. Al Megrahi's case back to the High Court of Justiciary has been long overdue and has created the chance for a second legal evaluation by an Appeal Court of five Scottish judges.

It is to be hoped that, in view of the far-reaching political implications and international ramifications of the case, this time the judges will act in full independence and that the proceedings will meet the standards of fair trial under the European Convention for the Protection of Human Rights and Fundamental Freedoms. If this final chance to put things right and conduct criminal proceedings in a fair and fully transparent manner is missed, irreparable damage will be done to the rule of law in Scotland and to the principle of "devolution" of important areas of public administration from the United Kingdom level to that of Scotland.

The undersigned would like to restate the point he made in his appeal report in 2002, namely that the final arbiter of the fairness of Scottish criminal proceedings (after all means of review in the domestic context have been exhausted) is the European Court of Human Rights (Strasbourg) that exercises its jurisdiction on the basis of the European Human Rights Convention.

Regrettably, the SCCRC has not disclosed all its grounds of referral and, in its news release of 28 June, has basically concentrated on the dubious role of Maltese witness Tony Gauci - while at the same time engaging in a rather strange exercise of "preventive exoneration" of certain people belonging to the British and/or Scottish police and judicial system whose behaviour, as pointed out in the undersigned's reports and confirmed, in the meantime, in several affidavits, has been highly questionable and may have detrimentally affected the fairness of the proceedings (see IPO News Release of 14 October 2005). It is particularly difficult to comprehend why the SCCRC would take great pains to "absolve" Mr Megrahi's defense team during the trial and first appeal from any criticisms in regard to their performance in the interest of their client (Par. 4.1 of the News Release of the SCCRC). The lack of integrity of the defense was obvious to the undersigned during the two years he observed the proceedings at Camp Zeist in the Netherlands and was the object of a conversation of the undersigned with the appellant (Mr Megrahi), arranged, at the latter's request, by the Scottish Court Service at HM Prison Zeist.

In view of the flawed trial and appeal proceedings, now acknowledged, at least in part, by the Scottish Criminal Cases Review Commission, and for the sake of transparency, the report of the Commission should be made public in its entirety. The victims' families as well as the international public deserve to know the full truth about the reasons of referral of Mr Al Megrahi's case back to the High Court of Justiciary.

In conformity with the principle of transparency of the proceedings that was guiding United Nations Security Council resolution 1192 (1998) (operative para 6), the proceedings of the Scottish Appeal Court should again be witnessed by international observers.

The undersigned renews his call for a full and independent public inquiry of the Lockerbie case and its handling by the Scottish judiciary as well as the British and US political and intelligence establishments. In order to avoid bias, such an investigation will require the participation of additional legal experts, to be appointed by the United Nations Organization, from countries that are not involved in the Lockerbie dispute.

Those politicians in the United Kingdom and the United States who have proclaimed an international "war on terror" will not be credible in their strategy if they prevent a full investigation into the causes of the explosion of Pan Am flight 103 over Lockerbie. All those responsible, without exception,  must be brought to justice.

(signed) Dr Hans Köchler

Lockerbie bomber hearing 'flawed'

The Sunday Times has picked up the story from The Firm which was mentioned on this blog on 13 June. The report, by Mark Macaskill, reads as follows:

'The UN’s observer in the trial that convicted a Libyan of the atrocity criticises the process of his appeal

The UN observer at the Lockerbie trial, Hans Köchler, has said that the Libyan convicted of the bombing will not get a fair hearing in Scotland.

Köchler, who advises the European Commission on democracy and human rights, has condemned government interference in the appeal of Abdelbaset Ali Mohmed al-Megrahi and said the hearing should be held in a neutral country.

His intervention follows an attempt by the British government to block the release of secret papers that could help clear the former Libyan intelligence agent convicted of the 1988 bombing, which claimed 270 lives.

Köchler said Megrahi’s case was handled “more like an intelligence operation than a genuine undertaking of criminal justice” and criticised MSPs for failing to hold inquiries into the downing of Pan Am 103 and its judicial aftermath. “It is almost trivial to say that a fair trial requires the availability of evidence to the prosecution and defence. Only in a totalitarian system would the executive power interfere in court proceedings and order the withholding of evidence.”

The Advocate General, on behalf of British ministers, had objected to disclosure of the documents to Megrahi’s legal team, lodging a public interest immunity plea.

Last month senior judges ordered that the papers should be released to the Court of Criminal Appeal in Edinburgh, where a panel of three judges will decide in camera whether they should be disclosed.

The documents, which are believed to hold information about the electronic timer that detonated the bomb, were not disclosed to the defence during al-Megrahi’s trial at Camp Zeist in the Netherlands. Megrahi lost an appeal in 2002, but the Scottish Criminal Cases Review Commission concluded that he might have been the victim of a miscarriage of justice and referred his case back to the court last year. One of the grounds for referral is believed to be the prosecution’s failure to disclose the secret document to Megrahi’s lawyers.

Köchler said the decision to hear the appeal in Scotland breached a concordat between the UK, the US and the Netherlands. “The fact that the new appeal proceedings take place in Scotland is not in conformity with the original intergovernmental agreement on the Lockerbie trial.” The proceedings totally lacked “transparency”, he said.

Last week, Robert Black, the Edinburgh law professor who helped to arrange Megrahi’s original trial in the Netherlands said the intergovernmental agreement no longer applied. It “existed for the original trial and the appeal. This is now the second appeal.” The agreement was spent, he said.

“Scotland made a mess of the trial and the appeal, and to an outside observer, that might lend justification to Köchler’s view. But I believe that this time it will be done properly and Megrahi will be released.”

Last year, Köchler said Scotland had the reputation of a “banana republic” because of its handling of the case.'

Scotland on Sunday runs a story along the same lines. It contains the following quote from doughty Lockerbie campaigner, Tam Dalyell:

"Hans Köchler is a good man and he is absolutely right with his criticisms. The behaviour of the Crown in this case has been disgusting and a disgrace to Scotland. I personally feel very responsible because I was one of those, along with others, who helped persuade the Libyans to hand over one of their nationals for trial."

Scotland on Sunday states that Professor Köchler's views were expressed in a letter written to The Firm. The letter was in fact written to Robbie the Pict who, with Köchler's permission, passed it to the magazine.

The case didn't follow the rule of law, says Hans Köchler

Today is the 25th anniversary of the destruction of Pan Am 103 over Lockerbie.  Unsurprisingly, the news media are full of articles about the disaster.  Most of these are commemorative human interest pieces and some of them are extremely moving. Of the reports that focus on hard news, the following are worth noting: 

CIA held Syrian militants responsible for Lockerbie bombing in The Telegraph;

Secret CIA testimony contradicts official Lockerbie bombing verdict in Ekklesia;

Megrahi family plan to appeal against his conviction in The Herald;

Lockerbie: Family of bomber plans new appeal in The Scotsman;

Megrahi family to appeal Lockerbie conviction in The Times of Malta; 
Die Zweifel von Lockerbie in Die Welt;

Lockerbie mystery still unsolved after 25 years in Deutsche Welle from which the following is an excerpt:

‘Hans Köchler goes a step further in his assessment of the incident. The Austrian philosopher was sent to The Hague in 2000 by the UN Secretary-General to observe the Lockerbie trial. He was present when Scottish judges acquitted a Libyan intelligence officer and sentenced the other accused suspect, Abdel Basset Ali al-Megrahi, to life imprisonment." From what I know and have seen," says Köchler, "this is a miscarriage of justice." (...)

‘There is only speculation about the real masterminds behind the Lockerbie bombing. Iran is always named, as well as the Palestine Liberation Organization (PLO), which was involved in many attacks at the time. But the evidence is contradictory, and 25 years after Lockerbie, there is apparently no one who wants to know the truth. (...)

‘Former observer Hans Köchler is one of those demanding the case be reopened. "It's necessary in order to restore confidence in government and the judiciary," says Köchler, "since many in Scotland are convinced that the case didn't follow the rule of law."’

Finally, here is a link to a bonkers piece by Alan Cochrane in The Telegraph in which he argues that the Scottish Government should apologise for the compassionate release of Megrahi because the medical advice that they, quite properly, followed turned out to be inaccurate; and a link to a typically ill-informed and blinkered article in The Times by that well-known Dr Pangloss of the Lockerbie case, Magnus Linklater.

Delaying tactics, errors and malpractices

[On this date in 2009, the International Progress Organization  issued a press release about a forthcoming article by Professor Hans Köchler, one of the United Nations observers at the Lockerbie trial. It reads as follows:]

"The Lockerbie Trial and the Rule of Law"

Criminal Justice in the Framework of International Power Politics

In an article for the forthcoming issue of the National Law School of India Review (NLSIR), the international observer appointed by the United Nations at the Scottish Court in the Netherlands, Dr Hans Köchler, has summarized his evaluation of the handling of the Lockerbie case by the Scottish and British authorities.

In the article, written upon invitation by the Student Advocate Committee of the National Law School of India (Bangalore), Köchler deals with the delaying tactics and the apparent strategy of the political establishment and judicial authorities to cover up the errors and malpractices that have led to a situation in which, ten years after the beginning of the trial and seven years after the end of the first appeal proceedings, still no plausible explanation is (officially) available for the explosion of Pan Am flight 103 over Lockerbie on 21 December 1988.

The article concludes with a quote from Köchler's keynote speech at the Law Awards of Scotland 2008, which highlights the dilemma of the new appeal proceedings that are eventually to begin in April 2009:

Whether those in public office like it or not, the Lockerbie trial has become a test case for the criminal justice system of Scotland. At the same time, it has become an exemplary case on a global scale - its handling will demonstrate whether a domestic system of criminal justice can resist the dictates of international power politics or simply becomes dysfunctional as soon as "supreme state interests" interfere with the imperatives of justice.

[RB: The full text of Professor Köchler’s important article can be read here.]

'The whole truth..'?

[This is the headline over a report in Al-Ahram Weekly Online from this week in 2001:]

A conference on Lockerbie organised by the Arab League this week concluded that the verdict was politically motivated, reports Gamal Nkrumah

Last Saturday, a two-day international conference on the trial at Kamp van Zeist in the Netherlands of two Libyan nationals accused of bombing a PanAm flight over the Scottish village of Lockerbie began at the headquarters of the Arab League in Cairo. Several luminaries, including a former Algerian president, attended the conference, which condemned the Scottish court's decision to convict former Libyan intelligence agent Abdel-Basset Al-Megrahi and acquit his co-defendant Amin Khalifa Fhima. A UN trial observer from Austria, also at the conference, denounced the trial as unfair and the verdict as irrational.

"Lockerbie was a sham trial. The whole purpose of that farcical but tragic exercise in legal acrobatics was to punish the Libyan regime. The United States and the United Kingdom wanted to make an example of Libya. They want to deter other Third World countries from daring to stand up for the rights of the downtrodden and dispossessed," Dr Said Hafyana, Libya's assistant secretary for legal affairs, told Al-Ahram Weekly.

"To this day, US sanctions have not been lifted," Hafyana said. "The trial was simply a means to penalise Libya and cripple the Libyan government by forcing it to pay hefty compensation fines to the families of the victims," Hafyana argued. "It was mainly a political trial," he added.

The conference on Lockerbie was officially opened by Dr Esmat Abdel-Meguid, the outgoing secretary-general of the Arab League. Abdel-Meguid emphasised in his keynote address that the Arab world and the international community have an obligation to lift completely the sanctions against Libya. He also reminded his audience that the United Nations security council resolution, which imposed sanctions against Libya in 1992, linked ending the sanctions to the extradition of the two suspects. The resolution did not stipulate other conditions. But after the two suspects were extradited to the Netherlands, the Security Council only suspended sanctions, leaving open the door for the US to set more conditions before total withdrawal of the sanctions. The Iran-Libya Sanctions Act, the independent sanctions regime unilaterally imposed by the US outside the authority of the UN, is still in force, though due to expire in August. Washington now insists that Libya accept full responsibility for the Lockerbie bombing and compensate the families of the victims before it will lifts its sanctions. Official Libyan sources say that sanctions have cost Libya over $26 billion to date.

Former Algerian President Ahmed Ben Bella was one of the conference guests. Ben Bella has been an outspoken critic of the Lockerbie trial and a tireless champion of the Libyan cause. He joined with former South African President Nelson Mandela to lead the international campaign to lift sanctions from Libya.

Ibrahim Legwell, Al-Megrahi's Libyan lawyer when the case first started, was also present in Cairo. "Historically, there have always been miscarriages of justice," he said. "But there have been no precedents to such a case by which proceedings can be compared and evaluated," he added. "Al-Megrahi insists that this is a case of mistaken identity and that he has been falsely accused. He says that he is innocent and cannot accept a situation where the families of the victims believe him to be the murderer," Legwell said.

Farouk Abou-Eissa, head of the Cairo-based Arab Lawyers Union was a panelist at the opening session. With the results of the appeal process still pending, Abou-Eissa appealed to the judges not to give in to the whims of world powers.

Some of the most damning criticisms of the trial came from Dr Hans Köchler, an official UN observer at Kamp van Zeist. Köchler told the Weekly that British and especially American pressure and political influence was brought to bear on the judges and that the trial was unfair. Köchler, a member of the International Progress Organisation, was nominated to his post by United Nations Secretary-General Kofi Annan on the basis of Security Council Resolution 1192. He is a professor at Innsbruck University in Austria.

Köchler upbraided the court for holding the suspects for an unseemly length of time. "The extraordinary length of detention of the two suspects from their time of arrival in the Netherlands until the beginning of the trial in May 2000 is a serious problem in regard to their basic human rights under European standards, in particular those of the European Convention on Human Rights," he said. The two Libyans were indicted in 1999.

Köchler also ridiculed the prosecution's grip on legal procedure. He noted the curious role played by the Libyan double agent Abdul-Majid Giaka. "The serious problem of process at Kamp van Zeist became evident when it transpired that CIA cables concerning one of the Crown's key witnesses, Giaka, were initially dismissed by the prosecution as 'not relevant.' Only later were they partially released thanks to pressure from the defence. Such incidents seriously damaged the integrity of the entire procedure. In the end, only a select few of the cables sent by the CIA to Giaka were released. Most were never made available," Köchler said. He also claimed that politics intruded into the court. The presence of government representatives of both sides in the courtroom gave the trial a highly political aura. But the official reporting of the court failed to declare this. "The presence of foreign nationals on the side of the defence team was not mentioned in any of the Scottish Court Service's official briefing documents," Köchler said.

Köchler was also concerned by the prosecution's witnesses. According to him, virtually everyone presented by the prosecution as a key witness lacked credibility, some having openly lied to the Court. Köchler was also worried about which information was released. It was officially stated by the Lord Advocate that substantial new information was received from an unnamed foreign government relating to the defence's case. But the content of this information was never revealed. "Foreign governments or secret government agencies may have been allowed, albeit indirectly, to determine which evidence was made available to the Court," Köchler said.

Many questions are still unanswered. It is unclear, for example, why the defence team suddenly dropped its "special defence" and cancelled the appearance of nearly all defence witnesses. Köchler says that defence lawyers were unavailable for comment on this crucial matter. Summing up his views of the trial, Köchler said, "The verdict was based on circumstantial evidence and on a series of highly problematic inferences. There is not one single piece of material evidence linking the two accused to the crime." Finally, Köchler called the court's decision that Al-Megrahi was guilty, "arbitrary and irrational." In conclusion Köchler had grave misgivings about the trial. He thought that it was unfair; that it was not conducted objectively; that the legal process was opaque and that evidence may have been withheld for political reasons.

Statement by Professor Hans Köchler

Lockerbie Appeal:
Is the insistence on the right to a fair trial absurd and illogical?
Scottish judiciary has to abide by the standards of the European Convention on Human Rights
Statement by Dr. Hans Köchler

Vienna, 3 July 2008
P/RE/20161c

According to reports in the Scottish media, Crown counsel Ronnie Clancy QC has branded as "absurd" and "illogical" demands that Abdelbaset Ali Mohmed al Megrahi's appeal before the High Court of Justiciary shall not be restricted to the grounds of appeal given by the Scottish Criminal Cases Review Commission (SCCRC).

On 28 June 2007 the SCCRC had announced its decision to refer Mr al Megrahi's case back to the High Court of Justiciary for a new appeal. The Commission had given six reasons for its decision some of which it kept secret upon announcement. Obviously (and not only in view of its "secretive" nature), the list of grounds given by the SCCRC cannot be considered as an exhaustive enumeration of all possible grounds of appeal. The grounds given by the SCCRC are simply those that led that body to suspect a miscarriage of justice. The reasons revealed by the SCCRC to the public are almost identical to the points I had raised in my trial and appeal reports (in 2001 and 2002 respectively) which I had submitted to the United Nations.

Contrary to the Crown's position, it is neither absurd nor illogical if an appellant expects an appeal court to hear additional grounds of appeal - if new information has indeed become available. Rather, it would be absurd and illogical to limit the appeal to a fixed number of grounds, i.e. - as regards the present case - to those grounds given in last year's decision of the SCCRC (whereby the evidence related to some of the grounds is still being kept secret).

In order to be fair, an appeal process must be comprehensive. Justice requires truth. Certainty "beyond a reasonable doubt" can not be established if the Defence is prevented from giving the grounds of appeal on the basis of the evidence that is available to it. A court's judgment must be based on arguments. To determine that certain issues and facts are excluded from being considered (because the presentation of some grounds of appeal is rejected by one party) invalidates the entire argumentative process.

A "fair trial" according to Art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention on Human Rights") requires that no one interferes into the competence of the Defence and that, accordingly, additional evidence that has become available is also heard. The limitation of the grounds of appeal is not only contrary to the rationale of a judicial review as such and, thus, intrinsically unfair, but it is also illogical if the goal of an appeal process is indeed a comprehensive review of the original verdict. There can be no rational argumentation of an appeal if the appellant is told what grounds he is allowed to raise and what not.

Rather, in terms of the labels used by the Crown counsel, it could be argued that the original verdict of the High Court of Justiciary was "absurd" and "illogical" since it declared one of the two Libyan suspects "guilty" and the other one "not guilty" - while the entire logic of the indictment was based on the theory of the two suspects having conspired together to ingest an explosive device at Luqa airport (Malta) to be transported in a piece of unaccompanied luggage to Frankfurt airport and from there on to Heathrow.

The effort at limiting the scope of the appeal by restricting the grounds that can be heard is especially serious in view of the British Government's insistence on withholding evidence from the Defence by means of a Public Interest Immunity (PII) certificate. Should the efforts of the Crown and the British Government succeed, the appellant would again be denied his right to a fair trial and will thus be entitled to seek redress from the European Court of Human Rights.

Dr Hans Köchler

Patrick Haseldine and Hans Köchler

I am grateful to Patrick Haseldine for copying to me the following e-mail exchange between himself and Professor Hans Köchler, the United Nations appointed observer at the Lockerbie trial.

Dear Robert,

You will, I think, be interested to see my exchange of emails with Dr Hans Koechler, the United Nations Observer at the Pan Am Flight 103 bombing trial:

Date:	Fri, 22 Feb 2008 16:27:10 +0000 (GMT)
From:	"Patrick Haseldine"
To:	info@i-p-o.org

Dear Dr Koechler,

Deemed to be outside the remit or powers of the Prime Minister and Government, my latest petition to PM Gordon Brown (calling for the Counter Terrorism Command of the Metropolitan Police to be in charge of any new investigation into the Lockerbie bombing) has been rejected this week (http://petitions.pm.gov.uk/SAfricaTerrorism/).

The ePetitions team gave the following explanation for the rejection: Criminal investigations are instigated by the police, not by the Prime Minister. You should take your request to the police authorities.

I understand that it was Prime Minister Thatcher who decided early in 1989 that the original Lockerbie investigation should be controlled by the small Dumfries and Galloway force - in liaison with the US Federal Bureau of Investigation and involving British and US intelligence - rather than by a specialist national police unit based in London. I had hoped that Prime Minister Brown would reverse that decision for a new investigation, but it could be that the powers devolved in 1998 from the House of Commons to the Parliament in Edinburgh preclude him from doing so.

References supporting the text of the rejected petition can be found at the website of Professor Robert Black (http://lockerbiecase.blogspot.com/2008/01/patrick-haseldine-on-lockerbie.html).

Yours sincerely,

Patrick Haseldine

From:	"info@i-p-o.org" info@i-p-o.org
To:	patrick.haseldine
Date:	Fri, 22 Feb 2008 17:39:33 -0500

23 February 2008

Dear Mr. Haseldine!

Thank you for the information on the reply from the Prime Minister's office.

In view of the many revelations during the last two years in the English and Scottish media, the Scottish authorities should undertake an investigation into the handling of the Lockerbie case - and possible criminal misconduct - by the Scottish police and judiciary. The Scots have to demonstrate that they are capable to handle judicial matters properly.

Devolution in matters of criminal justice is meaningless if they are not able to assert their authority vis-a-vis the UK government. The High Court's decision on the disclosure of the "secret" document provided by a "foreign" government will be the litmus test.

With best regards

Hans Koechler

[Note by RB: The final paragraph of Professor Köchler's message sets out precisely what is at stake for the Scottish criminal justice system in the present appeal.]