Briefing paper for Justice for Megrahi media conference

JUSTICE FOR MEGRAHI: BRIEFING PAPER 

Media Conference: Dynamic Earth, Holyrood Road, Edinburgh EH8 8AS Wednesday 16th March 2016 at 1.45pm 

Introduction

In September 2012 ‘Justice for Megrahi’ (JfM) made nine allegations of criminality against police, Crown Office officials and forensic scientists involved in the initial Lockerbie investigation and Camp Zeist trial. 

These allegations are currently the subject of a major Police Scotland investigation codenamed ‘Operation Sandwood’ and it is anticipated that the police report will be completed over the next two months and should according to accepted practice be forwarded to Crown Office 

This paper provides a brief outline of JfM’s concerns about the constitutional implications should such a procedure be followed. We believe that the bias and prejudice shown towards JfM and the Operation Sandwood enquiry by the Crown authorities makes it against the public interest for the Crown to receive this report. 

Our concerns are based on three central facts: 

1. A number of JfM’s nine allegations relate to the actions of ex Crown Office personnel or persons who were used as Crown witnesses in the trial of two Libyans, Abdelbaset al-Megrahi and Lamin Khalifah Fhimah. For Crown Office to assess the ‘Operation Sandwood’ report would offend a basic principle of natural justice: - no person can judge a case in which he or she is party or in which he/she has an interest. (nemo judex in sua causa) 

2. Before and after the criminal allegations were delivered to the police, the Lord Advocate and Crown Office personnel described the JfM complainers as ‘conspiracy theorists’, dismissed the allegations as, ‘defamatory and entirely unfounded ... deliberately false and misleading’ and acted publicly to underline their opinion that Mr. Megrahi and his accomplices were the only guilty parties. JfM believes that these public interventions may have had an effect on ‘Operation Sandwood’ witnesses who have been required to provide statements against a background of this very public ‘interference’ by Scotland’s senior prosecution authorities. We also fear that certain Crown, Police and expert witness, encouraged by the Crown statements, might seek to withhold or alter legitimate evidence to ‘Operation Sandwood’. (See appendix) 

3. Given that the ‘Lockerbie Affair’ has been a central interest of Crown Office over the 27 years since Pan Am Flight 103 was downed in December 1988 it is impossible to identify persons within that authority who could be truly said to be ‘independent’ or are not under the potential influence of the Lord Advocate and other persons who have publicly rejected the nine criminal allegations and vilified the members of JfM who made them.  

Consequences

Given these three facts JfM calls into question the ability of the Lord Advocate and Crown Office to independently and objectively consider the final ‘Operation Sandwood’ police report. Having clearly made up their minds and publicised their views the public interest demands a totally independent prosecutor be appointed. 

These opinions have received backing from senior legal and political sources. 

As a solution we have recommended that a Prosecutor totally independent of Crown Office be appointed to consider any report which emanates from Operation Sandwood and that this person’s decision should not be open to be changed by the Lord Advocate or Crown Office. 

The Lord Advocate has undertaken to have what he terms ‘independent counsel’ appointed to receive and consider the Operation Sandwood report but has failed to confirm that the final decisions on the police report will be made by someone totally independent of himself and Crown Office. 

In pursuit of this goal JfM has enlisted the assistance of the Justice Committee of the Scottish Parliament, but to date the committee has failed to receive a definitive response. Related correspondence can be found at: http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/44107.aspx 

We have also corresponded with the Cabinet Secretary for Justice Michael Matheson but he has refused to intervene. 

It seems clear to JfM that while the Lord Advocate might go some small way to meeting our requests he has no intention of giving up the Crown’s ultimate power to decide who will consider the ‘Operation Sandwood’ report, whether any prosecutions will result and what if anything is made public. 

Given that the police report is expected in the next two months JfM believes it is imperative to act now to do everything possible to ensure that neither the Lord Advocate nor Crown Office have any part to play in the final determination on the ‘Operation Sandwood’ report. 

Failing that it is vital these authorities are aware a steady spotlight will continue to shine on their actions to ensure that the previous bias and prejudice is not allowed to colour their judgement as the report is considered. 

That the Lord Advocate and Crown Office should have publicly dismissed the criminal allegations which will shortly be the subject of a major Police Scotland report is bad enough. That they should now seek to control what action is taken on that report is at best highly improper and at worst a denial of justice to those who believe that the truth should be heard. 

APPENDIX 

JfM CRIMINAL ALLEGATIONS: PUBLIC INTERVENTIONS BY THE LORD ADVOCATE/ CROWN OFFICE. 

September 2012: ‘Justice for Megrahi’ (JfM) writes to the Cabinet Secretary for Justice seeking an independent investigation into 9 allegations of criminality. At this time and before they had been formally reported to the police Crown Office authorities publicly dismissed them as being without foundation: http://lockerbiecase.blogspot.co.uk/2012/09/deliberately-false-and-misleading.html 

December 2012: Shortly after the allegations were officially made to the police and before their enquiry had started, in widely reported statements, the Lord Advocate again went public calling the JfM members who has made the allegations, “conspiracy theorists” and labelling the allegations, ‘defamatory and entirely unfounded … deliberately false and misleading.’ http://lockerbiecase.blogspot.co.uk/2012/12/pro-megrahi-backers-flayed-by-new-lord.html 

December 2014: At the Lockerbie commemoration ceremony in America, the Lord Advocate re-emphasised Mr Megrahi’s guilt, and the only remaining question was - ‘who were his accomplices’? These comments were made in the full knowledge that ‘Operation Sandwood’ was ongoing and that if any of the criminal allegations were upheld this would call into question Mr Megrahi’s guilt and the culpability of Crown Office and police. 

http://www.bbc.co.uk/news/uk-scotland-30560364 

http://stv.tv/news/west-central/304342-lord-advocate-mulholland-meets-fbi-director-to-discuss-lockerbie-probe/

http://www.scotsman.com/news/where-was-crown-s-lockerbie-fight-1-3644436 

Despite being aware of the seriousness of the 9 JfM allegations and the potential of the ‘Operation Sandwood’ police enquiry to bring new evidence to light, which might affect the guilt or otherwise of Abdelbaset al-Megrahi and the integrity of the witnesses used by the prosecution at his trial, the Lord Advocate has continued to undermine ‘Sandwood’ by promoting the theory that the only persons responsible for the Lockerbie tragedy were Mr Megrahi and unidentified suspects in Libya. 

Even now In the latest publicity surrounding Crown Office identification of two ‘new’ suspects they wish to interview in Libya the Lord Advocate and Crown Office have continued to favour their own ongoing investigation without any regard to the potential their comments are having on the ongoing ‘Operation Sandwood'. 

Perhaps the ultimate irony comes in the recent comments made by the Lord Advocate in relation to the publicity surrounding the allegation made in the wake of the death of Sheku Bayoh in police custody. 

‘Lord Advocate Frank Mulholland urged all those with an interest in the death of Mr Bayoh not to engage in “speculation and a running commentary”. 

‘Mr Mulholland called for Pirc and the Crown Office to be allowed to “get on with their job” amid intense media interest in the case.’

http://www.scotsman.com/news/politics/top-stories/lord-advocate-appeals-for-calm-insheku-bayoh-case-1-3924644#ixzz3pNbFSC1t 

What a pity the Lord Advocate has ignored his own advice for so many years.

Megrahi petition again before Justice Committee

[Justice for Megrahi’s petition features on the agenda for the meeting of the Scottish Parliament’s Justice Committee to be held on Tuesday 17 January 2017 starting at 10.00 in Holyrood Committee Room 2. The following are (a) the committee clerk’s note on this agenda item and (b) Justice for Megrahi’s submission to the committee:]

PE1370: Independent inquiry into the Megrahi conviction

Terms of the petition

PE1370 (lodged 1 November 2010): The petition on behalf of Justice for Megrahi (JFM), calls for the opening of an 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.

Current consideration

19. At its meeting on 27 September 2016 the Committee agreed to keep the petition open pending the completion of Operation Sandwood. This is the operational name for Police Scotland‟s investigation into the nine allegations of criminality levelled by Justice for Megrahi at the Crown Office and Procurator Fiscal Service, the police, and forensic officials involved in the investigation and legal processes relating to Megrahi‟s conviction. The allegations range from perverting the course of justice to perjury. It had previously been understood that the operation would be expected to conclude by the end of 2016. Further information is being sought from Police Scotland and the clerk will update the Committee on this at the 17 January meeting.

20. Police Scotland have previously stated that once the report is finalised it will then be scrutinised and assessed by an independently appointed Queen‟s Counsel appointed by Police Scotland to provide independent direction and advice.

21. In their submission to the Committee for the meeting on the 27 September, the petitioners informed the Committee that they continued to liaise with Operation Sandwood investigators and that they anticipated having a final meeting with them prior to the report being submitted to the COPFS.

22. The petitioners have provided a written submission (Annexe F*) asking the Committee to keep the petition open not only until the completion of Operation Sandwood but until the COPFS has fully considered the police report and announced its findings. The submission does not contain any new information from the petitioners as to the likely completion date for Operation Sandwood.

Options for action on petition PE1370

23. The Committee is invited to consider what action it wishes to take in relation to the petition, having regard to its decision in September in keep the petition open pending the completion of Operation Sandwood.

*Annexe F

Petition: PE1370 submission from Petitioner

In November 2010 Justice for Megrahi (JfM) lodged petition PE1370 with the Petitions Committee calling on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset al-Megrahi for the bombing of Pan Am flight 103 in December 1988. The petition was referred to the Justice Committee which first considered it on 8th November 2011.

In 2012 we lodged with the police nine allegations of criminality linked to the Lockerbie investigation and trial, and for the last three years Police Scotland has been conducting a major criminal investigation into these allegations under the codename “Operation Sandwood‟. It is anticipated that the police will submit their final report to the Crown Office in the early part of this year.

Over the period since its submission in 2011 the Justice Committee has agreed to keep this petition open. At the meeting on 27th September however members decided to keep the petition open “pending the completion of Operation Sandwood”. This could be construed as a change from the previous position, assumed by us, that the petition would be kept open until the Crown Office had fully considered the police report and announced its findings.

Given the centrality of this issue to the image of Scottish Justice at home and abroad and the previous public dismissal of the JfM allegations by Crown Office even before the police investigation of them had begun (indeed, even before the supporting evidence had been submitted), we would seek assurance from the Justice Committee that it will continue its review of our petition and the Operation Sandwood inquiry until the police report has been fully considered by Crown Office and its conclusions have been announced.

We believe that the Justice Committee is the principal body through which the Scottish Parliament fulfils its constitutional duty to provide political oversight of the Scottish Justice System. As such, we believe that its continued monitoring of the actions of the prosecution authorities in relation to the Operation Sandwood investigations is critical and very much in the public interest.

We would respectfully urge the Committee to allow Petition PE1370 to remain on the table until the Crown Office has announced its conclusions in respect of Operation Sandwood.

Megrahi petition on agenda for 2 May meeting of Justice Committee

[Justice for Megrahi’s petition (PE1370) calling for an independent inquiry into the conviction of Abdelbaset Megrahi features on the agenda for the Scottish Parliament Justice Committee meeting to be held on Tuesday, 2 May 2017 at 10.00 in Holyrood Committee Room 2. JfM’s written submission to the committee reads as follows:]

INTRODUCTION
As you are aware the above petition has been kept open by the Justice Committee since 8 November 2011 to allow various developments related to the Lockerbie case to be monitored by the committee.

A full record of the relevant correspondence with the Justice Committee is reproduced on the Scottish Parliament website.

In this submission JfM wishes to bring the committee’s attention to developments since the petition was last considered on 17th January 2017.

Clarification: In our submission to the 17th January meeting of the Justice Committee, JfM requested that the Committee continue its review of our petition until the Operation Sandwood, ‘police report has been fully considered by Crown Office and its conclusions have been announced.’

In their contributions at this meeting, MSP’s Stewart Stevenson and Mary Fee stated that they agreed with our request for, ‘the petition to remain open until the conclusions of Operation Sandwood have been announced.’

In a letter informing us that the petition would be heard again by the committee on 2nd May, the Deputy Clerk to the committee informed us that it had been, ‘agreed to keep the petition open pending the completion of Operation Sandwood.’

It would be helpful to clarify that as requested in our last submission, and agreed by your committee, the petition will remain open until Crown Office consideration of the police report is complete and any related decisions are made.

Crown Office: As committee members will be aware, a series of Operation Sandwood related parliamentary questions to the Lord Advocate by MSP Alex Neil have been responded to and published.

Mr Neil thereafter wrote to the Lord Advocate and received a response on 20th April. Copies of Mr Neil’s questions and the Lord Advocates answers, his letter to the Lord Advocate and the LA’s response, are attached for member’s information.

Operation Sandwood: JfM continues to hold regular meetings with the Operation Sandwood police team providing mutual updates on the enquiry process and related matters, and continues to have faith in the integrity and completeness of the police enquiry.

The submission of the police report to Crown Office has been delayed and our latest understanding is that it should be submitted in the next few months.

Megrahi Family Appeal: JfM has noted the recent publicity suggesting that the family of Abdelbaset al-Megrahi will launch a bid to appeal against his conviction in the next few weeks.

If these reports are accurate then this is a significant development for those pursuing the truth about Lockerbie.

CONCLUSION
JfM appreciates the Justice Committee’s continuing oversight of the Operation Sandwood enquiry and report.

Given the central importance of the findings of Operation Sandwood to any future prosecutions, enquiries or appeals, JfM believes it is critical, and very much in the public interest, that the committee continues to monitor these findings until Crown Office has fully considered them and announced its conclusions.

We would respectfully urge the Committee to allow Petition PE1370 to remain on the table.

Operation Sandwood Report: Public Statements by Lord Advocate and Crown Office

[In the item The Crown Office - cause for serious concern? posted earlier today on this blog, mention is made of statements by the Crown Office and the Lord Advocate that, in the view of Justice for Megrahi, disqualify them from playing any part in assessing Police Scotland’s forthcoming Operation Sandwood report into JfM’s allegations of criminal misconduct in the Lockerbie investigation, prosecution and trial. What follows is the text of a document released today by JfM on the Crown Office’s and Lord Advocate’s statements:]

Introduction

In relation to the forthcoming police Operation Sandwood report into Justice For Megrahi’s (JfM’s) 9 criminal allegations which is due to be submitted to the Crown Office early in 2016 we have consistently argued that this authority and the Lord Advocate have disqualified themselves from receiving, considering and making any prosecutorial or other decisions flowing from this report because of related public statements made by them.

Public Statements

In September 2012, following JfM’s letter to the then Secretary for Justice Kenny MacAskill laying out the allegations and seeking an independent investigation into them, and before they had been reported to the police, the Crown Office authorities publicly dismissed them as being without foundation in an article in The Scotsman:

‘But the Crown Office yesterday branded the allegations “defamatory and entirely unfounded”. A spokesman added that one of the allegations had been investigated by the Scottish Criminal Cases Review Commission (SCCRC) which found no basis for appeal, while it was also found there was “no basis” for claims that any police officers or officials fabricated evidence.

“It is a matter of the greatest concern that deliberately false and misleading allegations have been made in this way,” he added. The Lockerbie conviction has already been upheld by five appeal court judges, while Megrahi abandoned a second appeal.’ http://lockerbiecase.blogspot.co.uk/2012/09/deliberately-false-and-misleading.html

In December 2012 shortly after the allegations were officially delivered to Dumfries and Galloway Police, in widely reported statements, the Lord Advocate went public calling the JfM members who has made the allegations, “conspiracy theorists” and labelling the allegations, ‘defamatory and entirely unfounded ....... deliberately false and misleading.’

‘Scotland’s Lord Advocate has launched a powerful and stinging attack against “conspiracy theorists” who claim that the Lockerbie bomber was wrongly convicted.

In the most detailed rebuttal yet made to the case mounted by campaigners who argue that Abdul Baset Ali al-Megrahi was innocent and that Libya was not involved in the terrorist bomb plot that brought Pan Am 103 down over Lockerbie 24 years ago today, Frank Mulholland, QC, calls the allegations “without foundation” ‘.

He goes on to accuse those making them of uttering “defamatory” comments against High Court judges who are unable to respond. http://lockerbiecase.blogspot.co.uk/2012/12/pro-megrahi-backers-flayed-by-new-lord.html

It is against this background of unprecedented public vilification of JfM’s legitimate allegations and those who made them that the subsequent behaviour of Lord Advocate/ Crown Office must be judged.

Having set themselves firmly against JfM and its claims their subsequent behaviour can clearly be seen as a consistent pattern of behaviour proactively supporting this totally unjustified bias and prejudice.

In June 2014 the BBC reported that the Megrahi family had instructed a Scottish lawyer to apply to have his conviction reviewed by the SCCRC and published a Crown Office response to the application.

‘A Crown Office spokesman said they "do not fear scrutiny of the conviction by the SCCRC." The spokesman added: "The evidence upon which the conviction was based was rigorously scrutinised by the trial court and two appeal courts after which Megrahi stands convicted of the terrorist murder of 270 people. We will rigorously defend this conviction when called upon to do so. In the meantime, we will continue the investigation with US and Scottish police and law enforcement.” ‘ http://www.bbc.co.uk/news/uk-scotland-27698626

In December 2014, at the Lockerbie commemoration ceremony in America, the Lord Advocate once again re-emphasised Mr Megrahi’s guilt and stated the only remaining question was, ’who were his accomplices’? These comments were made in the full knowledge that Operation Sandwood was ongoing and that if any one of the criminal allegations was upheld this would call Mr Megrahi’s guilt into question and could point to Crown Office and police culpability.

The Daily Telegraph reported: ‘Frank Mulholland, the Lord Advocate, used the 26th anniversary of the bombing to reaffirm his belief in the guilt of the only man convicted of the attack, and said Scottish prosecutors would never give up the fight to find his accomplices.’ http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/11306609/Lockerbie-bombing-senior-law-officer-vows-to-track-down-Megrahi-accomplices.html

The BBC reported: ‘Mr Mulholland said: "During the 26-year long inquiry not one Crown Office investigator or prosecutor has raised a concern about the evidence in this case. "We remain committed to this investigation and our focus remains on the evidence, and not on speculation and supposition. "Our prosecutors and police officers, working with UK government and US colleagues, will continue to pursue this investigation, with the sole aim of bringing to justice those who acted along with al-Megrahi.” ‘

http://www.bbc.co.uk/news/uk-scotland-30560364

In October 2015 the BBC reported: ‘A Crown Office spokesman said: "The Lord Advocate and the US Attorney General have recently agreed that there is a proper basis in law in Scotland and the United States to entitle Scottish and US investigators to treat two Libyans as suspects in the continuing investigation into the bombing of flight Pan Am 103 over Lockerbie.’

http://www.bbc.co.uk/news/uk-scotland-34543983

Unfortunately these public statements by the Lord Advocate and Crown Office, highlighting and reinforcing Mr Megrahi’s guilt, fail to acknowledge, what they well knew, that there are two ongoing major investigations.

The first of them, to which the above quotations refer, is being conducted by a Crown Office/Police Scotland ‘Lockerbie Investigation Team’, in close liaison with the American FBI, and has been ongoing for a number of years. Its enquiries are based on the clear assumption that Megrahi did not act alone and his accomplices have still to be identified. The Lord Advocate has recently confirmed that as part of this investigation he is applying to interview two further Libyan suspects incarcerated in Libya.

The second investigation, mounted in 2012, followed JfM's nine allegations of criminality relating to the actions of Crown Office and police personnel and persons who were cited as Crown witnesses in the trial of the two Libyans. This investigation is now being carried out by a dedicated team of Police Scotland officers under the codename Operation Sandwood and a report is expected early next year.

As the Crown well knows the two investigations referred to above are potentially in direct conflict in that the first is predicated on the assumption that Mr. Megrahi is guilty. The Operation Sandwood enquiry however is into allegations that, if proved, point to his innocence and that there may have been malfeasance by some associated with the prosecution including Crown office personnel.

Conclusion

In publicly condemning the JfM allegations and the individuals who made them and by continuing to give such open public support to their own investigation the Lord Advocate and Crown Office have prejudiced and prejudged the outcome of Operation Sandwood.

In 2012 as soon as they were aware of our allegations, the resultant police investigation and the fact that if proved they could challenge the previous assumptions so actively being promoted by the Crown, these authorities should have taken immediate action to protect its integrity and made no further public comment which could be in any way related too that investigation.

As far as we can judge the Lord Advocate/Crown Office have taken absolutely no action to protect the ongoing Police Scotland major investigation and in fact have actively acted against it.

JfM believes that this consistent pattern of biased public statements, in addition to being completely inappropriate, has had the clear potential to influence and prejudice Operation Sandwood witnesses who have been required to provide statements against a background of this very public interference by Scotland’s senior prosecution authorities. We also fear that certain Crown, Police and expert witness, encouraged by the Crown statements, might seek to withhold from or alter legitimate evidence to Operation Sandwood.

Such blatant publicity also serves of course to set the whole of the Crown Office against any contradictory findings from Operation Sandwood thus making it entirely inappropriate for anyone associated with the Crown Office to receive, assess and decide on any action resulting from this report.

Since we made these allegations JfM has become increasingly concerned about the capability of the Lord Advocate/Crown Office to make objective and impartial decisions on any report emanating from the Operation Sandwood investigations. We believe that they have comprehensively disqualified themselves from such decisions and make it essential that a prosecutor completely independent of the Crown Office receives the report, assesses it and makes decisions arising from it without any Crown Office input.

Justice Committee to resume consideration of Megrahi petition

[Justice for Megrahi’s petition (PE1370) seeking an independent inquiry into the Lockerbie investigation, prosecution and trial features on the agenda for the meeting of the Scottish Parliament Justice Committee’s meeting to be held on Tuesday, 27 September 2016 in Holyrood Committee Room 2, beginning at 10.00. The committee clerk’s note on this item reads as follows:]

Terms of the petition

PE1370 (lodged 1 November 2010): The petition on behalf of Justice for Megrahi (JFM), calls for the opening of an 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.

Recent background to the petition in Session 4

Scottish Criminal Cases Review Commission

17. On 5 November 2015, the Scottish Criminal Cases Review Commission (SCCRC) announced that: “it is not in the interests of justice‖ to continue with a review of the conviction of the late Abdelbaset Ali Mohmed Al Megrahi. Consequently, the application has been refused.” In a news release published that day the Commission‘s Chairman, Jean Couper said:

“A great deal of public money and time was expended on the Commission‟s original review of Mr Megrahi‟s case which resulted, in 2007, in him being given the opportunity to challenge his conviction before the High Court by way of a second appeal. In 2009, along with his legal team, Mr Megrahi decided to abandon that appeal. Before agreeing to spend further public money on a fresh review the Commission required to consider the reasons why he chose to do so. It is extremely frustrating that the relevant papers, which the Commission believes are currently with the late Mr Megrahi‟s solicitors, Messrs Taylor and Kelly, and with the Megrahi family, have not been forthcoming despite repeated requests from the Commission. Therefore, and with some regret, we have decided to end the current review. It remains open in the future for the matter to be considered again by the Commission, but it is unlikely that any future application will be accepted for review unless it is accompanied with the appropriate defence papers. This will require the cooperation of the late Mr Megrahi’s solicitors and his family.”

Operation Sandwood

18. Operation Sandwood is the operational name for Police Scotland‘s investigation into the nine allegations of criminality levelled at the Crown Office and Procurator Fiscal Service, police and forensic officials involved in the investigation and legal processes relating to Megrahi‘s conviction. The allegations range from perverting of the course of justice to perjury. Police Scotland‘s report of this operation is expected to be completed before the end of the year. The S4 Committee received a number of updates from JFM asking that an “independent prosecutor” be appointed to assess the findings of Operation Sandwood.

19. The S4 Committee wrote to the Lord Advocate seeking his views on the appointment of an “independent prosecutor” as proposed by JFM. His response outlined arrangements made by COPFS to employ independent Crown Counsel not involved in the Lockerbie case to deal with the matter. JFM rejected the involvement of independent Crown Counsel as they consider it does not represent an “independent, unbiased and constitutionally sound approach”. The S4 Committee sought further information regarding the appointment of an independent prosecutor in September 2015 to which the Lord Advocate reiterated his earlier response.

20. On 5 January 2016, the S4 Committee wrote again to the Lord Advocate, asking him to respond to JFM‘s most recent submission which questioned the Lord Advocate‘s intention to appoint Catherine Dyer, the Crown Agent, as the Crown Office official responsible for co-ordinating matters with the “independent counsel”. (Ms Dyer has since retired from the COPFS.)

21. On 29 February 2016 the S4 Committee received a response from the Crown Agent setting out the steps which will be taken by COPFS to ensure that the police investigation into allegations of criminality by JFM in connection with the Lockerbie case, known as Operation Sandwood, are dealt with appropriately. The Crown Agent attached copies of previous correspondence from 26 June 2013 setting out the specific arrangements which pertain to Operation Sandwood and from 25 February 2013 and 25 March 2013 which include general details of how COPFS deals with allegations of criminal conduct by prosecutors or former prosecutors.

Session 4 Legacy Report

22. The S4 Justice Committee last considered the petition on 1 March 2016. It agreed to seek further information about the progress of Operation Sandwood and to keep the petition open. In its Legacy Report in respect of PE1370 the S4 Committee stated—

PE1370 lodged by Justice for Megrahi (JfM) in November 2010 calling for an independent inquiry into the conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1998. Much of the Committee‟s recent activity has focused on receiving progress updates on Police Scotland’s “Operation Sandwood‟. This operation is its investigation into JfM‟s nine allegations of criminality levelled at the COPFS, the police, and forensic officials involved in the investigation and legal processes around Megrahi‟s conviction. In addition, the Committee has been examining the process for the COPFS appointing independent counsel to examine the findings of Operation Sandwood when available. We requested a final update on progress with Police Scotland‟s investigation in March 2016 for consideration by our successor committee.

Latest information available

23. The most recent response from Police Scotland was received on 11 March 2016 and can be found in Annexe E. It states that the Deputy Chief Constable expected to receive a detailed report by mid May. This report and its findings would then require be scrutinised and assessed by the independent Queens Counsel appointed by Police Scotland. Police Scotland confirmed that a definitive timetable to complete the process could not be provided at this stage. There has been no public statement since then, of which the clerks are aware, indicating whether this process has proceeded as indicated in the 11 March letter.

24. On 2 June, the issue of comments about the Megrahi case made in a recent book by former Justice Secretary Kenny MacAskill, were raised during First Minister‘s Questions. The First Minister stated that "it is not for me, for any First Minister or for any member of the government to decide that a conviction is unsafe. That is a matter for the courts of the land. That is the case in this case and it is the case in any other criminal matter." She added that it remained open for Megrahi's close relatives to ask the SCCRC to refer the case to the appeal court: “Ministers have repeatedly made clear that they would be comfortable if that was to happen but that is the process that must be undertaken if this case is to be looked at by the appeal court."

25. In September there were press reports that Mr Megrahi‘s eldest son Khalid al-Megrahi intends to come to Scotland to resurrect the appeal against conviction which his father had dropped on his return to Libya in August 2009. The petitioner‘s response (Annexe F) refers to this and confirms they have no information as to the truth or otherwise of these reports. www.telegraph.co.uk/news/2016/09/11/lockerbie-bombers-son-plans-move-toscotland-to-clear-his-father/

26. The Petitioner for PE1370 has provided a written submission which can be found in Annexe F.

Options for action on petition PE1370

27. The Committee is asked to consider and agree what, if any, action it wishes to take in relation to the petition (see paragraph 6* for possible options).

28. As ever, there is the option of closing the petition. If the Committee wished to keep the petition open, it might wish to consider writing to Police Scotland seeking confirmation the Operation Sandwood report has been received and trying again to seek clarity on the future timetable for completion of the process.

*Options available to Committees considering petitions

6. Once a petition has been referred to a subject Committee it is for the Committee to decide how, or if, it wishes to take the petitions forward. Some examples of how this can be done are set out below although the list is not exhaustive. The Committee can choose to:  

• Keep the petition open and write to the Scottish Government or other stakeholders seeking their views on what the petition is calling for, or views on further information to have emerged over the course of considering the petition;
• Keep the petition open and take oral evidence from the petitioner and / or stakeholders;  
• Keep the petition open and await the outcome of a specific piece of work, such as a consultation or piece of legislation;  
• Close the petition on the grounds that the Scottish Government has made its position clear or that the Scottish Government has made some or all of the changes requested by the petition, or that the Committee, after due consideration, has decided it does not support the petition;  
• Close the petition on the grounds that a current consultation, call for evidence or inquiry gives the petitioner the opportunity to contribute to the policy process.

[RB: The various Annexes referred to in the clerk’s note, including the submission from Justice for Megrahi, can be read here.]

Megrahi petition on Justice Committee agenda for 23 February meeting

[The Justice Committee of the Scottish Parliament will be resuming consideration of Justice for Megrahi’s petition (PE1370) at its meeting on 23 February 2016 commencing at 10.00 in Holyrood Committee Room 2. The relevant note by the committee’s clerk reads as follows:]

PE1370: Independent inquiry into the Megrahi conviction

Terms of petition

PE1370 (lodged 1 November 2010): The petition on behalf of Justice for Megrahi (JFM), calls for the opening of an 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.

Background

Operation Sandwood

17. “Operation Sandwood‟ is the operational name for Police Scotland‟s investigation into JFM‟s nine allegations of criminality levelled at the Crown Office and Procurator Fiscal Service, police and forensic officials involved in the investigation and legal processes relating to Megrahi‟s conviction. The allegations range from perverting of the course of justice to perjury. Police Scotland‟s report of this operation is expected to be completed before the end of the year. The Committee has received a number of updates from JFM asking that an “independent prosecutor‟ be appointed to assess the findings of Operation Sandwood.

18. The Committee previously wrote to the Lord Advocate seeking his views on the appointment of an „independent prosecutor‟ as proposed by JFM. His response outlined arrangements made by COPFS to employ independent Crown Counsel not involved in the Lockerbie case to deal with the matter. JFM have rejected the involvement of independent Crown Counsel as they consider it does not represent an “independent, unbiased and constitutionally sound approach”. The Committee sought further information regarding the appointment of an independent prosecutor in September 2015 to which the Lord Advocate reiterated his earlier response.

Scottish Criminal Cases Review Commission

19. On 5 November 2015, the Scottish Criminal Cases Review Commission (SCCRC) announced that: “it is not in the interests of justice” to continue with a review of the conviction of the late Abdelbaset Ali Mohmed Al Megrahi. Consequently, the application has been refused.” In a news release published that day the Commission‟s Chairman, Jean Couper said:

“A great deal of public money and time was expended on the Commission‟s original review of Mr Megrahi‟s case which resulted, in 2007, in him being given the opportunity to challenge his conviction before the High Court by way of a second appeal. In 2009, along with his legal team, Mr Megrahi decided to abandon that appeal. Before agreeing to spend further public money on a fresh review the Commission required to consider the reasons why he chose to do so. It is extremely frustrating that the relevant papers, which the Commission believes are currently with the late Mr Megrahi‟s solicitors, Messrs Taylor and Kelly, and with the Megrahi family, have not been forthcoming despite repeated requests from the Commission. Therefore, and with some regret, we have decided to end the current review. It remains open in the future for the matter to be considered again by the Commission, but it is unlikely that any future application will be accepted for review unless it is accompanied with the appropriate defence papers. This will require the cooperation of the late Mr Megrahi‟s solicitors and his family.”

Latest developments

20. On 5 January 2016, the Committee agreed to write again to the Lord Advocate, asking him to respond to JFM‟s most recent submission to the Committee which questions the Lord Advocate‟s intention to appoint Catherine Dyer, the Crown Agent, as the Crown Office official responsible for co-ordinating matters with the “independent counsel‟. The Committee requested the Lord Advocate‟s response by 5 February. At the time of writing this response has not been received. It will be circulated to members and published on the Committee‟s website as soon as it is received.

21. In the interim, JFM has provided a submission to the Committee outlining their disappointment that a response from the Lord Advocate has not yet been received (Annexe D).

Options for action on petition PE1370

22. The Committee may wish to agree to:

• keep the petition open and recommend that a future justice committee continues to monitor these issues and, in particular, progress with Operation Sandwood, or

• take any other action in relation to the petition that the Committee considers appropriate (including closing the petition).

ANNEXE D

Justice for Megrahi submission for the consideration of PE1370 by the Justice Committee on 23 February 2016

Since the last consideration of PE 1370, on 5 January 2016, nothing of import has emerged from either the Lord Advocate or the Crown Office and Procurator Fiscal Service (COPFS) that clarifies their position re JfM‟s request that a prosecutor entirely independent of COPFS, and who had been appointed independently of said body, receive and consider the final Police Scotland Operation Sandwood report.

On 12th January 2016, the Deputy Convenor of the Justice Committee wrote to the Lord Advocate asking that he address JFM‟s concerns over the manner in which he was dealing with our request for total independence from the Crown Office in the consideration of the Operation Sandwood report.

When this letter was posted on the Parliament website JfM expressed some concern that the terms of the agreement reached at the Justice Committee on 5th January to write to the Lord Advocate appeared not to have been fully met in that the 8 questions we asked the committee to put to the Lord Advocate had not been referred to. We are unaware if this issue had been resolved.

The Deputy Convenor afforded the Lord Advocate a full month in which to respond. At the time of writing, we believe that he is in default as no reply has yet been received by the Justice Committee.

Given that the submission of Police Scotland‟s Operation Sandwood report to the Crown Office is imminent this is a most unsatisfactory position.

It is clearly against the public and a constitutional interest that the Lord Advocate has so far failed to confirm that the police report will be considered by an authority entirely separate from the Crown Office and totally free from its influence or to lay out clearly what his intentions are.

Thus, JFM appeals to the Justice Committee of the Scottish Parliament to exercise whatever means it has at its disposal to ensure that before the Operation Sandwood Report is submitted that your committee and JfM are fully briefed on how this report will be considered and who will consider it.