The Crown submissions in the Megrahi appeal

[What follows is excerpted from The Guardian's report today on the third and final day of the Megrahi appeal hearing:]

A government lawyer has urged a Scottish court to use incriminating evidence from the second Libyan accused of the Lockerbie bombing and uphold the conviction of Abdelbaset al-Megrahi.

Ronnie Clancy QC, an advocate depute for the Scottish government, said the five judges hearing an appeal against Megrahi’s conviction were entitled to use diary entries from his co-accused, Al Amin Khalifa Fhimah, even though Fhimah was acquitted.

Fhimah’s diary had entries claiming he had acquired baggage tags which, Clancy said, would have allowed Megrahi to bypass security at Luqa airport in Malta and plant the suitcase bomb which later blew up on Pan Am 103 over Lockerbie, south-west Scotland.

Clancy told the appeal that the judges at their trial, held without a jury at Camp Ziest in the Netherlands from May 2000 until January 2001, were wrong to discard that simply because they had acquitted Fhimah.

Clancy told the court: “It’s for you to make of it what you will, in particular whether you’re impressed or agree with what the trial court said, which is it’s obviously capable of having a sinister connotation in the context of Mr Megrahi’s guilt.” [RB: This is a very weak argument indeed. The trial court held that the diary entry was insufficient to infer guilt against its author, Fhimah. It is difficult to see by what process of reasoning it can be treated as an adminicle of evidence inferring the guilt of a third party, Megrahi.]

The lawyer’s recommendation came on the third day of a hearing into a posthumous appeal by Megrahi’s family (...)

After his family made a fresh application to the SCCRC, in May 2020, the commission again said his conviction could be unsafe due to significant doubts about the identification evidence against Megrahi, given by Tony Gauci, a Maltese shopkeeper, and issues with the non-disclosure of evidence.

Clancy rejected the attacks by the Megrahi family’s lawyers on Gauci’s evidence, insisting his identification of Megrahi as the man who bought the clothes used in the bomb was honest and unswayed by outside influence.

The trial judges took account of the difficulties with identification evidence, including the passage of time, the fallibility of identification evidence and suggestibility of witnesses.

“It is inconceivable that three experienced judges weren’t alive to these issues. There are plenty of indications in the text of their analysis which made it clear that they were,” Clancy said.

The SCCRC had discovered that after his trial Megrahi had an Air Libya uniform which allowed him to travel freely in and out of Malta, Clancy added. As a senior Libyan intelligence officer, who did business with the firm selling the bomb’s timer, Megrahi also had access to a fake passport, which was used in Malta on the dates the bomb was planted.

“It’s clear that the trial court explains in detail why it reached the conclusion that in did in its analysis of Tony Gauci’s evidence. The trial court’s reasoning is sensible, measured and well within the bounds of a reasonable fact-finding exercise,” he said.

Clancy finished his rebuttal on Thursday afternoon, and the appeal court announced it would give its decision at a later date.

Lockerbie: court 'should have been told witness wanted payment'

[This is the headline over a report on the website of The Guardian on the second day of the Megrahi appeal. It reads in part:]

The court that convicted a Libyan intelligence officer for the Lockerbie bombing should have been told a key witness wanted payment for his testimony, appeal judges have been told.

Gordon Jackson QC, part of the legal team acting for the family of Abdelbaset al-Megrahi, said there was clear evidence that the witness Tony Gauci was interested in compensation for giving evidence, and frustrated none had emerged.

Jackson said the prosecution had an obligation to reveal that to the trial court, which convicted Megrahi of killing 270 people when Pan Am flight 103 blew up over Lockerbie in south-west Scotland in December 1988.

Instead, the relevant Scottish police interviews with Gauci, a Maltese shopkeeper whose testimony convicted Megrahi, were not given to the court or the Libyan’s defence team. The undisclosed papers “showed a very clear pattern” where Gauci “had a strong motivation of a financial nature,” Jackson said.

Jackson, (...) said the defence could have aggressively pursued this with Gauci when he gave evidence, challenging his credibility.

“The information in those documents would’ve given them the basis to attack that credibility,” he told a panel of five Scottish appeal judges, headed by Scotland’s most senior judge, Lord Carloway, the lord justice general.

It later emerged Gauci and his brother were paid $3m by the US government after he gave evidence – a deal not disclosed until after the trial. (...)

The case was returned to court earlier this year after the Scottish Criminal Cases Review Commission, an independent body, decided there were grounds for believing Megrahi’s conviction was unsafe.

It said there were significant issues with the trial court’s judgment about Gauci’s testimony, and the failure to disclose evidence.

On Friday, Carloway ruled that some of that undisclosed evidence, involving allegations from the Jordanians linking a Palestinian terrorist group to the attack, must remain secret.

Speaking earlier, Claire Mitchell QC, another lawyer for Megrahi’s family, represented by the Glasgow-based human rights lawyer Aamer Anwar, said the trial court had also been wrong to allow Gauci to identify Megrahi from the witness stand because Gauci had previously seen prejudicial press articles claiming Megrahi was guilty.

Ronnie Clancy QC, acting for the Scottish and UK governments, said the trial judges had acted properly and fairly in convicting Megrahi. “The crown’s position is that the appellant can’t meet the statutory test of showing no reasonable jury, properly instructed, could have convicted Mr Megrahi,” he told the court.

“On the contrary, the trial court were fully entitled to make the findings which they set out in their opinion and were fully entitled to conclude Mr Megrahi was guilty beyond reasonable doubt.” In fact, Clancy said, at times they erred in Megrahi’s favour when they weighed up the evidence.

The forthcoming Megrahi appeal

[What follows is excerpted from a long document recently produced by the Crown in connection with the forthcoming posthumous appeal against the conviction of Abdelbaset al-Megrahi.]

On 6 March 2020 the Scottish Criminal Cases Review Commission referred the late Abdelbaset Ali Mohmed Al Megrahi’s 2001 conviction for the murder of 270 people in the Lockerbie bombing back to the High Court of Justiciary. (...)

The current appeal stems from an application made to the SCCRC by Mr Megrahi’s family in July 2017. In April 2018 the Commission accepted that application and began a full review of Mr Megrahi’s conviction. In their 2020 statement of reasons the Commission summarised the application by Mr Megrahi’s family as being based on 6 grounds, they were:

1. Insufficient Evidence;

2. Unreasonable Verdict;

3. Fresh Evidence, namely the Christmas Lights;

4. Non-disclosure;

5. Evidence relating to the Timer Fragment; and

6. Evidence relating to the Suitcase Ingestion.

On 6 March 2020 the Commission published their Statement of Reasons, a lengthy volume setting out the findings of their review, and in conclusion referred the conviction back to the High Court of Justiciary for an appeal hearing.

The Commission concluded that they could only refer the conviction back to the High Court on two of the above six grounds: Unreasonable Verdict and Non-Disclosure.

In June 2020 those representing the family of the late Mr Megrahi lodged their Grounds of Appeal at the High Court of Justiciary, thereby formally beginning the third appeal against conviction in this case.

The Appeal Court is bound in law to hear the appeal on the grounds of appeals in so far as they are in line with the Commission’s reference, and there is also provision for the appellants to argue that they should be allowed to argue further grounds of appeal not covered by the Commission’s reference.

The grounds to be argued at the appeal, also referred to as the scope of the appeal, were argued at the preliminary hearing on 21 August 2020.

The Preliminary Hearing called before Lord Carloway the Lord Justice General, Lady Dorrian the Lord Justice Clerk and Lord Menzies at the Appeal Court on 21 August 2020. This was a virtual hearing of the Appeal Court. Submissions were heard from the Appellants, the Crown and on behalf of the Advocate General. (...)

The Grounds of appeal were numbered Part 1, and Part 2, A – D. Arguments were made by both sides as to the scope of the appeal and whether additional grounds of appeal, which did not form part of the SCCRC’s referral, could be argued in the appeal. The grounds of appeal which were matters referred by the SCCRC were automatically included in the scope of the appeal and no arguments were made in relation to them. These are:

Ground 1 - that no reasonable jury could have convicted Mr Megrahi based on the evidence;

and

Ground 2 Part A - the non-disclosure of information in relation to the evidence of Crown Witness Antony Gauci.

A number of documents were listed in support of Ground 2 Part A. However, one of them, (described as Part A, para 14 in the Grounds of Appeal), was not included in the SCCRC referral and has now been excluded by the Court from the appeal.

The Appellants argued that additional grounds of appeal in addition to the Commission’s grounds of referral should also be admitted, namely:

Ground 2 Part B - the non-disclosure of information in relation to the witness Abdul Majid, also known as Giaka;

Ground 2 Part C - the non-disclosure of information contained in protectively marked documents; and

Ground 2 Part D - the non-disclosure of other information which shows there was no effective system of disclosure to ensure a proper procedural safeguard to guarantee the right to a fair trial. This information was further divided into 7 distinct areas.

Parts B, C and D (and also one item from Part A) did not form part of the reasons for the referral by the SCCRC. They were points that the SCCRC considered and have commented on within their Statement of Reasons but which they did not consider were in the interest of justice to refer. The SCCRC did say, however, that the appellants might seek to include them within an additional ground of appeal.

The Crown position at the hearing in respect of the potential additional grounds of appeal inGround 2, Part A (item 14), Part B, Part C and one of the 7 areas in Part D was that whilst recognising it was ultimately a matter for the Court, the preference was that they were heard in the full appeal hearing because the Crown would wish to answer the points and consider it is in the interests of justice to do so because to leave the points unanswered may affect public confidence in the safety of Mr Megrahi’s conviction and the administration of criminal justice in Scotland more generally. In relation to part D above, the Crown asked for all but one of the 7 examples given to be excluded from the scope of the appeal.

After hearing all the arguments, the Court made avizandum (this means a pause) while they considered their decision. On 26 August 2020 the Court issued their decision on the scope of the appeal, and set out the procedure to be followed:

1. They allowed Mr Megrahi’s son, Ali Abdulbasit Ali Almaqrahi to bring the appeal on behalf of his late father.

2. They also allowed the appellants to proceed with some additional grounds of appeal that did not relate to any of the reasons set out by the SCCRC in its 2020 Statement of Reasons. These are as follows:

a) The Court allowed Ground 2, Part B to be heard at the appeal as an additional ground. This is with regard to information relating to the witness Abdul Majid, also known as Giaka.

b) In respect of Ground 2, Part C, which related to information contained in the protectively marked documents, the court has not made a final decision about whether this will form a ground of appeal yet. Instead, it ordered that the documents in question be produced to the court and that a special hearing be fixed in a closed court in order to consider whether the Public Interest Immunity Certificate granted in respect of the documents should remain in place. A hearing took place on 11 November 2020. The result is awaited (...) [RB: On Friday, 20 November the High Court published its decision upholding the UK Government's claim of public interest immunity. Accordingly this proposed ground of appeal falls.]

c) With regard to Ground 2, Part D, in which the appellants argued that there was not an effective system of disclosure to ensure that Mr Megrahi had received a fair trial, the court refused to allow this, excluding all 7 parts of it and the wider argument. It stated that it would not allow any ground of appeal to proceed which related to "system of disclosure which was not fit for the purpose of ensuring that all relevant information was identified and disclosed", the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the respondent” (the Crown).

d) The court also set out that the hearing will start on Tuesday 24 November 2020 and the three following days. 

The Appeal Court will sit at 10am UK time from Tuesday 24th until Friday 28th [sic] November 2020. 

A bench of five Judges of the High Court of Justiciary will hear the full appeal hearing and rule on the merits of the appeal. They will be: 

The Right Hon Lord Carloway, the Lord Justice General

The Right Hon Lady Dorrian, the Lord Justice Clerk

The Right Hon Lord Glennie 

The Right Hon Lord Menzies

The Right Hon Lord Woolman.

The Crown will be represented at the appeal by three Advocate Deputes: 

Ronnie Clancy QC

Douglas Ross QC  

Nick Gardiner. 

They also represented the Crown in the 2007-2009 appealfollowing the SCCRC’s 2007 reference  which was ultimately abandoned by the appellant. At the appeal hearing, as senior Crown Counsel, Ronnie Clancy QC will make the Crown’s submissions to the Court.

The appellants will be represented by Senior Counsel and Junior Counsel. They are respectively:

Claire Mitchell QC

Claire Connelly.

[RB: It appears that the hearing will once again take place by means of WEBEX, a video conferencing online application. Log-in information for members of the public wishing to follow the proceedings (audio only) is to be found here.]

Coronavirus may be ‘excuse’ in Megrahi appeal papers row, lawyer claims

[What follows is excerpted from a report published today on the ITV News website. It reads in part:]

The lawyer acting for the family of Abdelbaset al-Megrahi has suggested the prosecution service may be tempted to use coronavirus as an “excuse” regarding handing over documents in the appeal against the Lockerbie bombing conviction.

The way was paved for the appeal when the Scottish Criminal Cases Review Commission (SCCRC) last month referred the case to the High Court, ruling a possible miscarriage of justice may have occurred. (...)

[Aamer Anwar] has since asked the Crown Office to disclose material he believes is related to the case to assist appeal preparation.

The Crown Office said it is reviewing the material it holds but the coronavirus outbreak is affecting the resources available, adding it is going as far as possible “within current public health guidance”. (...)

The SCCRC published a decision on March 11 ruling a miscarriage of justice may have occurred in his case on two of the six grounds it considered in the review – unreasonable verdict and non-disclosure.

On the issue of unreasonable verdict, the commission said a miscarriage of justice may have occurred because no reasonable trial court, relying on the evidence led at trial, could have held the case against Megrahi was proved beyond reasonable doubt.

On the issue of non-disclosure, it said the Crown ought to have disclosed certain information to the defence and also its failure to disclose information about reward money bolsters the conclusion he was denied a fair trial.

Now, Mr Anwar has criticised the Crown Office’s response to his request for document disclosure.

He told the PA news agency: “Following the decision of the SCCRC on our application, we wrote on March 13 to the Lord Advocate for full disclosure of materials.

“Despite the appeal timelines imposed upon my team we have received absolutely no disclosure to date.

“That is simply unacceptable and a failure by Crown Office. The Megrahi family, the British families of victims as well as the Libyan people have waited far too long for this appeal once and for all to be settled in the Court of Appeal.”

He added: “The Lord Advocate’s team may be tempted to use coronavirus as an excuse however we will not hesitate to seek orders from the Court to recover these documents.

“The Crown were totally aware that the SCCRC would have been making its decision over the last several months…yet now say the materials are not easily accessible.”

Mr Anwar said draft grounds of appeal have been prepared for lodging with the court by April 30.

In a reply to Mr Anwar’s letter, dated March 20, Lothian and Border Procurator Fiscal Laura Buchan said: “In respect of the request for disclosure we are carrying out a review of the material we hold and will reply substantively in due course.

“You will be aware that the coronavirus (Covid-19) outbreak is having a significant impact on the Scottish criminal justice system.

“Whilst the Appeal Court will continue to sit where possible the outbreak will have an impact on the resource we can currently dedicate to that review and disclosure bearing in mind that much of the review is of hard copy materials stored within office premises, and cannot be conducted online.”

She said Ronnie Clancy QC, senior counsel for the appeal, has offered to meet Mr Anwar’s team to discuss disclosure requests but Mr Anwar said his team would not meet the Crown until fuller information had been provided by the SCCRC. [RB: Ronnie Clancy also acted for the Crown in the appeal allowed to Mr Megrahi by the SCCRC in 2007.]

A Crown Office spokesman said: “Much of the material that requires review prior to disclosure is not held digitally, as would be expected given the age of this case and the sensitivity of some documents.

“The Crown is conducting a full review insofar as possible within current public health guidance.

“Legal representatives of Mr Megrahi’s family have been advised of this and counsel for the Crown have offered to discuss the case with counsel for the appellant.”

Al Megrahi wins legal victory in Lockerbie appeal

[This is the headline over a report published in The Herald on this date in 2008. It reads as follows:]

The man convicted of the Lockerbie bombing won a legal victory today in the latest stage of his bid to have his conviction overturned.

Judges ruled that Abdelbaset Ali Mohmed Al Megrahi's appeal could have a wide-ranging focus, looking beyond the issues raised by the Scottish Criminal Cases Review Commission (SCCRC) when it suggested he might have suffered a miscarriage of justice.

The decision came after the Libyan's lawyers lodged full grounds of appeal earlier this year and argued that the full appeal should include all the points pertinent to the case.

The Crown had opposed the move, arguing that it would be "absurd", "illogical" and incompetent in law for Al Megrahi to be granted a hearing with such a broad focus.

Today, three judges at the Court of Criminal Appeal in Edinburgh rejected the Crown's position.

Lord Hamilton, sitting with Lords Kingarth and Eassie, said the court "holds that the appellant (Al Megrahi) is entitled to have his stated grounds of appeal decided by the court on their respective merits".

Al Megrahi's lawyer welcomed the "important victory" for his client.

Solicitor Tony Kelly said afterwards: "It is a complete victory for the appellant's position before the court and a complete rejection of the Crown's argument.

"The Crown employed lots of resources to try to restrict the court and they have been stopped in their tracks.

"It is an important victory for Mr Al Megrahi."

Al Megrahi, a former Libyan intelligence officer, is serving a minimum of 27 years in prison after being convicted of bombing Pan Am flight 103 in 1988, killing 270 people.

He lost an appeal in 2002, but was given a fresh chance to clear his name in June last year when the SCCRC referred his case back to appeal judges for a second time.

In its 790-page report, the independent body identified five reasons which led it to believe that a miscarriage of justice may have occurred.

Al Megrahi's full appeal is unlikely to be heard until next year, but numerous procedural hearings in the case have already been held.

In June this year, the Crown argued that the grounds of Al Megrahi's appeal should be confined to the reasons given by the SCCRC for referring the case to the court.

At a special five-judge hearing, Advocate Depute Ronnie Clancy QC said the commission's inquiries had been wide-ranging, having been undertaken in the UK and as far afield as Malta, Libya and Italy.

Granting Al Megrahi a wide-ranging second attempt to overturn his conviction would be "absurd" and "illogical", he argued.

But judges dismissed those arguments today.

Scotland's top judge, Lord Hamilton, told a procedural hearing in Edinburgh: "The court's conclusion is that... it rejects the statutory construction urged by the Advocate Depute and holds that the appellant is entitled to have his stated grounds of appeal decided by the court on their respective merits."

He said the court was applying the law as it currently stands.

Lord Hamilton went on: "Whether it is desirable, having regard to, among other things, the use of judicial resources, that a reference appellant should have unrestricted scope in what he lays before the court for adjudication is a matter for Parliament, but this court must apply the statute as presently framed."

Al Megrahi was not in court for today's hearing.

r Jim Swire, whose daughter Flora died in the disaster and is spokesman for the UK Families Flight 103 group, was in court for today's decision.

After the hearing, he said: "This is excellent news from the point of view of the relatives.

"The attempt was to limit what was submitted to the court for the second appeal and this is the criminal authorities saying they are not going to restrict the defence.

"Since our remit is to look for the truth, the more that comes out in court the happier we are.

"So I am really jubilant about today's hearing."

[RB: Regrettably, the law on this matter has now been altered by the Scottish Parliament. In any new appeal allowed by the Scottish Criminal Cases Review Commission (eg in an application by Megrahi’s family) the appeal court would be limited to the specific grounds of referral allowed by the SCCRC unless the court was prepared, in the interests of justice, to permit additional grounds of appeal to be added: Criminal Procedure (Scotland) Act 1995, section 194(D) (4A) and (4B), as inserted by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss 83, 206(1).]

First preliminary hearing in second Megrahi appeal

[What follows is excerpted from a report published on this date in 2007 on the BBC News website on the first procedural hearing in the appeal allowed to Megrahi by the SCCRC:]

Lawyers for the man jailed for the Lockerbie bombing have asked the Crown to hand over documents which they said could help overturn his conviction.

A court was told their non-disclosure could indicate that Abdelbaset Ali Mohmed al-Megrahi, 55, was the victim of a "miscarriage of justice".

The Libyan's legal team said they needed the papers to prepare an appeal.

They were granted an extension until 21 December - the 19th anniversary of the disaster in which 270 people in 1988.

The hour-long hearing - which Megrahi did not attend - was the first time the case has come to court since he was granted the right to a second appeal earlier this year.

The full appeal - before a panel of five judges - is likely to be heard next year.

Speaking at the Court of Criminal Appeal in Edinburgh Jim Swire, whose daughter Flora was among the 270 who died when Pan Am Flight 103 exploded over Lockerbie, described it as "a very ominous date".

"We are getting near the 19th anniversary of the murder of our loved ones," he said.

Mr Swire said he was pleased that Scotland's top judge, Lord Justice General Lord Hamilton, seemed to want to speed things up as much as possible. [RB: The hope that progress would be swift soon turned out to be forlorn.]

However, he added that it would be wrong to put too much pressure on the defence.

Alongside the appeal for documents, Defence QC Margaret Scott said a new witness could discredit Maltese shop keeper Tony Gauci whose evidence was crucial in convicting Megrahi at a special court in the Netherlands in 2001.

Ms Scott also said defence forensic experts were working on reports to counter other evidence led at the trial.

The hour-long hearing followed recent speculation that US security services were blocking the handover of potentially crucial information about the timer which detonated the bomb on Pan Am flight 103.

However, Lord Hamilton, sitting with Lords Kingarth and Eassie, heard that the Americans were not involved.

"The documents don't come from that government or any of its agencies," said advocate depute Ronald Clancy QC, for the Crown.

He told the court: "The documents in question were passed to the UK Government on the basis that they were regarded as being confidential by the authorities that passed them over.

"That being so, the Crown has always taken the position that, if possible, confidentiality should always be respected."

Mr Clancy added: "The Crown has been actively pursuing the matter but today it remains unresolved."

Requests had been made to allow the Crown to hand over the documents and it was possible this might happen without the appeal judges having to rule on the issue, the court heard.

Mr Swire said that if the secret documents did not come from the US then it was "pure speculation" which government they belonged to. [RB: Years later it emerged that the the government in question was that of Jordan.]

In 2002, five judges heard an appeal against Megrahi's conviction but decided that the guilty verdict should stand.

[RB: My own report on the procedural hearing reads as follows:]

The hearing at the High Court of Justiciary in Edinburgh this morning lasted just under one hour. The judges were the Lord Justice General (Lord Hamilton), Lord Kingarth and Lord Eassie. (For brief biographies, see http://www.scotcourts.gov.uk/session/judges.asp.) Mr Megrahi was represented by a team headed by Maggie Scott QC and the Crown by a team headed by Ronnie Clancy QC. For technical reasons of no particular interest in the overall scheme of the Lockerbie case, the Advocate General for Scotland was also represented; as also was the Chief Constable of Dumfries and Galloway (because copies of the documents that Megrahi's lawyers are seeking to have disclosed to them are in that police force's possession).

The principal subject of debate was Megrahi's application to have disclosed a document relating to timers that is in the possession of the Crown and that was seen by the Scottish Criminal Cases Review Commission, and the non-disclosure of which to the defence was one of the Commission's reasons for holding that a miscarriage of justice might have occurred. The only major surprise in the hearing was the Crown's revelation that the foreign country from which the document in question emanated was not the United States of America. The general assumption amongst commentators (myself included) had been that the source of the document was the CIA or the FBI. Mr Clancy indicated that the Crown was seeking the consent of the foreign country in question for the release of the document to the appellant's legal team He asked for, and was granted, a six week period to lodge written answers to Megrahi's application for an order for the document to be disclosed. His hope was that within that period the foreign country would agree to its release and that the court would not therefore have to consider whether to make a formal ruling on the matter.

The other issue ventilated at the hearing was the timetable for Megrahi's legal team to lodge his Grounds of Appeal (as distinct from the "outline of proposed grounds of appeal" that had already been provided to the court). Ms Scott indicated that a vast amount of new material had become available to Megrahi's team from the SCCRC and also from the Maltese authorities and that this had to be considered and assessed before grounds of appeal could be finalised. The court ordered that the Grounds of Appeal be lodged before the end of the legal term on 21 December 2007, but on the understanding that additions and amendments might be required thereafter. A separate set of grounds of appeal on the issue of inadequate representation by Megrahi's original legal team was ordered to be lodged in advance, so that the lawyers criticised in them should have the opportunity of commenting on the allegations without further delay to the proceedings as a whole.

The appeal proceedings will be held in Edinburgh, but Ms Scott indicated concerns about arrangements for Mr Megrahi's repatriation to Libya in the event of his release. It is to be expected that satisfactory arrangements will be evolved, perhaps involving the United Nations (as happened in respect of Mr Fhima, the co-accused who was acquitted at the original trial).

The public benches of the courtroom were by no means full, though a number of Lockerbie relatives did attend, along with a substantial contingent of representatives of the media. The most common complaint from those attending was the difficulty in hearing what was being said. The acoustics were appalling and this was not helped by the tendency of the speaking participants (with the honourable exceptions of Ms Scott and Mr Clancy) to whisper or mumble.

Mulholland to be new Lord Advocate

[This is the headline over a report in today's edition of The Herald. It reads in part:]

Solicitor General Frank Mulholland will today be named Lord Advocate, succeeding Elish Angiolini who last year announced plans to step down.

This will create a vacancy for the second law officer post and The Herald understands that it has been decided that a woman will fill the deputy role.

One of the names mooted for the Solicitor General post had been experienced QC Ronnie Clancy, a son of a police officer who has been at the bar since 1990 and was senior Crown counsel in the Lockerbie appeal.

However, The Herald has been told that with the promotion of Mr Mulholland, his No 2 will be a woman. A source at the Faculty of Advocates made the point that the number of women there has expanded from 10 to 100 in just 20 years, so with other senior female fiscals there will be no shortage of choice. (...)

Mr Mulholland was appointed by Alex Salmond as Solicitor General four years ago and it is understood he will now be promoted to the top post.

Mr Salmond will name his Cabinet team today after being sworn in at the Court of Session. He will swear three oaths – as First Minister, as Keeper of the Seal, and of allegiance to the Queen – before receiving the Royal warrant confirming his appointment as First Minister.

[This appointment is not unexpected, but it is to be regretted. Virtually the whole of Frank Mulholland's career has been spent as a Crown Office civil servant. This is not, in my view, the right background for the incumbent of the office of Lord Advocate, one of whose functions has traditionally been to bring an outsider's perspective to the operations and policy-making of the department. Sir Humphrey Appleby was an outstanding civil servant of a particular kind, but his role was an entirely different one from that of Jim Hacker and no-one would have regarded it as appropriate that he should be translated from Permanent Secretary of the Department of Administrative Affairs to Minister (or, indeed, from Secretary of the Cabinet to Prime Minister).

The appointment by the previous Labour administration in Scotland of Elish Angiolini as Solicitor General and then as Lord Advocate was a mistake, both constitutionally and practically, as was her retention as Lord Advocate by the SNP minority government (though the political reasons for her re-appointment were understandable). It is sad that the new majority SNP Government has not taken the opportunity to return to the wholly desirable convention of appointing an advocate or solicitor from private practice to fill the office of Lord Advocate. The much-needed casting of a beady eye over the operations of the Crown Office is not to be expected from this appointee. This is deeply regrettable since such scrutiny is long overdue.

The Scottish lawyers' magazine The Firm has picked up this post. Its report can be read here.]

Media reaction to abandonment of appeal

Excerpts from Lucy Adams's report in The Herald:

Megrahi's defence team revealed that he made the decision to drop the case because he believed it would speed up the decision to allow him to return to Libya.

The Herald understands that Kenny MacAskill, the Justice Secretary, will allow Megrahi to return to Tripoli later this week on compassionate grounds. Ramadan begins on Friday and there is concern that he would not survive the strict fasting regime involved while in prison.

Seven senior US Senators yesterday wrote to the Justice Secretary to oppose such a move. They include leading Democrats John Kerry and Ted Kennedy.

However, a Libyan judge, who was in court yesterday as an "observer" to the hearing, said he should be allowed to return home to his family.

Honorary Justice Hamdi Fannoush said outside the courtroom that dropping the case was "not in the interests of justice".

Mr Fannoush said: "People want to know what happened but this closes the door on that opportunity.

"Megrahi wanted to clear his name in court but after trying every possible way of getting home to see his family, he felt forced to make this sacrifice.

"In Libya everyone is talking about this. They believe he is innocent and cannot understand why he is still not home when he is so ill. Judicially nothing more can be done now other than a public inquiry." (...)

Lord Hamilton, Scotland's most senior judge who was sitting with Lord Eassie and Lady Paton, said it was "of the utmost importance" that the Lord Advocate Elish Angiolini makes an early decision on whether she intends to insist upon the appeal.

The judge said the court urged her to reach a decision on that matter without undue delay. If she has not dropped the appeal against the length of sentence there will be another procedural hearing in three weeks. Ronnie Clancy, QC for the Crown, said she had to consider the public interest.

The Rev John Mosey, whose daughter Helga, 19, died in the bombing, said the outcome was "more or less what we expected". He went on: "It's a sad day really. It's the worst possible decision for the families because we lose the opportunity to hear evidence that the Scottish Criminal Cases Review Commission thought was worth putting forward."

Mr Mosey said none of the big questions about Lockerbie had been answered.

"We are back where we started 21 years ago, asking for a wide-reaching independent inquiry into all aspects of this disaster," he said. (...)

Christine Grahame, a backbench SNP MSP who has visited Megrahi in prison, said outside court it was "extraordinary" that the Crown had not dropped its own appeal against Megrahi's sentence.

"The Crown was not prepared today to say whether they would drop their appeal." she said. "We had the extraordinary thing of the Crown saying they'd not seen the medical evidence."

She went on: "They have known this was coming before the court and I hope that within the next 24 hours they lodge something dropping their appeal."

Excerpts from David Maddox's report in The Scotsman:

Alex Salmond has given the strongest indication yet that the Lockerbie bomber is to be released from prison, by insisting the decision would not be swayed by a show of strength from the United States.

Speaking after the receipt of a letter from several high-profile US senators, including Ted Kennedy and John Kerry, the First Minister said: "There will be no consideration of international power politics or anything else. It will be taken on the evidence in the interest of justice."

In the letter, received on the day Abdelbaset Ali Mohmed al-Megrahi formally dropped his appeal, the senators urged justice secretary Kenny MacAskill not to allow the bomber to return to Libya. It followed similar moves from US secretary of state Hillary Clinton and former presidential candidate John McCain. Last night in Washington, Mrs Clinton issued a strongly-worded plea to keep al-Megrahi in prison. "I just think it is absolutely wrong to release someone who has been imprisoned based on the evidence about his involvement in such a horrendous crime," she said. "We are still encouraging the Scottish authorities not to do so and we hope that they will not." (...)

Megrahi could be returned to Libya on compassionate grounds or under a prisoner transfer agreement.

Mr Salmond insisted no decision had been made and issued a strong vote of confidence in the justice secretary, who has been under fire over the past week for his handling of the issue, following leaks suggesting Megrahi is to be released.

Mr Salmond said: "I can also say that a final decision has not been taken by the justice secretary – he only received his final advice at the weekend. I'm absolutely confident if there is one person in Scotland I would absolutely trust to make the right decision for the right reasons, it's Kenny MacAskill."

He also tried to quash suggestions that the dropping of Megrahi's appeal had anything to do with a meeting between the convicted bomber and Mr MacAskill.

"What I can say is, the Scottish Government had no interest whatsoever in Mr Megrahi dropping his appeal," he said.

The First Minister's intervention has been widely perceived as an effort to regain some control over an issue on which his administration has been accused of losing its grip.

A leading article in The Guardian headed "Lockerbie case: the fix and the facts":

After a short hearing in Edinburgh yesterday, Scottish judges accepted Abdelbaset al-Megrahi's application to drop his appeal against his conviction and life sentence for the Lockerbie bombing. As Lord Hamilton implied in his judgment, the court had little choice once Megrahi had decided to withdraw. The upshot is that, through no fault of their own, the judges gave the impression that justice had been relegated to a walk-on role in a well-orchestrated international political fix. Whatever the intentions of those involved or the requirements of compassion towards a dying man, that outcome leaves the Lockerbie families looking like the neglected victims of a stitch-up and the rule of law looking like an afterthought.

Even now, with the way clearing for Megrahi's early release, the decision that faces Scotland's justice secretary, Kenny MacAskill, is not straightforward. He has the authority to release Megrahi on compassionate grounds because of his cancer. Or he has the option of allowing him to be returned to serve out his time in a Libyan jail under the terms of an agreement between the UK and Libyan governments. There are other options too. But the underlying problem about the Lockerbie case is the same as always – the mismatch between the immensity of a crime that resulted in 270 deaths and the imperfections of the search for the truth about what happened. Exactly where Megrahi fits into the elusive story is not absolutely clear. Until yesterday, his lawyers had worked tirelessly to argue that he played no real role. All along, there have been parallel legal and political universes. As the saga has unwound, the facts have become less watertight and a fear has grown both of an injustice against Megrahi and, at least as importantly, the possibility that the outrage against Pan Am flight 103 might have been state-sponsored in a way that remains concealed from the courts.

In such circumstances, any release of Megrahi by a politician rather than by a court inevitably causes misgivings – and worse – whatever the motivation and however scrupulous the process. As a rule, ministers should not be asked to do the work of judges. They inevitably concern themselves with issues like raison d'état, party advantage, self-promotion and press reaction as much as dispensing justice or maintaining the rule of law. Mr MacAskill should certainly have kept quiet about his intentions until he had decided what to do. Instead he allowed the different interest groups to bid for his vote. The Lockerbie case has always involved political judgments as well as legal ones. Releasing Megrahi may indeed be compassionate and the least worst option in the current circumstances. But it is a bad outcome to a bad case nonetheless. Justice has not been done.

Excerpts from Charlene Sweeney's report in The Times:

The High Court in Edinburgh helped to clear the way for the Lockerbie bomber to return to Libya yesterday when it granted his application to abandon his appeal against conviction.

The White House responded by declaring that Abdul Baset Ali al-Megrahi should remain in Scotland to serve out his life sentence. Robert Gibbs, President Obama’s spokesman, said: “It’s the policy of this Administration . . . that this individual should serve out his term where he’s serving it right now.”

Hillary Clinton, the US Secretary of State, called the Justice Secretary last week to insist that the Libyan serve the rest of his sentence in Scotland, and seven senior US senators, including Edward Kennedy and John Kerry, sent a letter to Mr MacAskill expressing concern over his potential release.

Last night Mrs Clinton made clear her strong views on the matter. “I just think it is absolutely wrong to release someone who has been imprisoned based on the evidence about his involvement in such a horrendous crime,” she said. “We are still enouraging the Scottish authorities not to do so and we hope that they will not.”

Alex Salmond, Scotland’s First Minister, broke his silence yesterday on al-Megrahi’s possible release saying he believed that Mr MacAskill would “make the right decision for the right reasons”. He added: “There will be no consideration of international power politics or anything else. It will be taken on the evidence in the interest of justice.”

Leave to abandon granted

The High Court of Justiciary has granted leave to Abdelbaset Megrahi to abandon his appeal. The court (Lord Justice General Hamilton, Lord Eassie and Lady Paton) doubted whether leave was required, but granted it anyway.

Maggie Scott QC for Megrahi informed the court that her client's prostate cancer was highly aggressive, his condition (as certified by three independent consultants) was grave, and he was in considerable pain and distress. His absolute priority now was to return to his homeland to die surrounded by his family. It was for that reason alone that he had instructed his lawyers to abandon his appeal.

The court raised with Ronnie Clancy QC for the Crown the issue of the Crown's separate appeal against sentence. Mr Clancy stated that the Lord Advocate had not yet reached a decision on whether to abandon this appeal (without which prisoner transfer cannot take place) but would consider her position in the light of the court's decision on Mr Megrahi's Minute of Abandonment and would seek to secure that the timing of her decision did not impede any decision on prisoner transfer or its implementation.

The court announced its decision after retiring for ten minutes. The Lord Justice General announced that the court granted Mr Megrahi leave to abandon. He also stressed that it was of the utmost importance for the Lord Advocate to reach her decision speedily. If she decided to abandon that could be effected by written intimation to the court, without the need for a sitting of the court to be convened.
A procedural hearing was fixed for three weeks' time, to take place only if the Lord Advocate had not by then abandoned.

The Daily Record's account of today's proceedings can be read here and that of BBC News here.

The appeal: week three

The first session of Abdelbaset Megrah's appeal has been continuing in the High Court of Justiciary in Edinburgh though, until today, there has been no media coverage that I have been able to trace on the internet. However, a report has now appeared on The Herald's website. It reads in part:

'The Libyan intelligence officer convicted of the Lockerbie bombing made an unexplained trip to Malta using a false passport and an assumed name, appeal judges were told yesterday.

'He arrived the day the bomb that killed 270 people was planted at the island's Luqa Airport and left the following morning, said Ronnie Clancy QC.

'"At no stage was any significant evidence offered as to the issue or use of the passport in any innocent connection.

'"The only evidence about that was a false denial of the possession of the passport."

'Despite rumours that have been circulating for days that Abdelbaset Ali Mohmed al Megrahi will drop his appeal in exchange for a return to Libya, the hearing continued at the Court of Criminal Appeal in Edinburgh. (...)

'Defence QC Maggie Scott has been arguing that no reasonable jury would have found al Megrahi guilty and that there was not sufficient evidence, in law, to convict him.

'Mr Clancy, for the Crown, has now begun the task of trying to demolish the defence claims by reminding the five appeal judges of the reasons why their colleagues found al Megrahi guilty in 2001.

'"No explanation for the visit to Malta the evening before the device was on the plane and departed for Tripoli the following morning," said Mr Clancy.

'"It is clear beyond doubt that the court is linking the use of the passport with the commission of the offence," he said.

'If the Libyan wins this round of his long-running appeal he could go home a free man. If the court, led by Lord Justice General Lord Hamilton, rules against him, al Megrahi still has other challenges to his conviction that are yet to be argued.'

[As regards the coded -- not false -- passport, it is of relevance only if the bomb actually started from Malta, which is a finding that the defence have strongly challenged in the appeal; and they have pointed out that although Megrahi travelled under a coded passport, he stayed in a hotel in Malta under his own name.]

The on-going appeal

The appeal hearing continued on Wednesday, notwithstanding the prisoner transfer application submitted by the Libyan Government.

Maggie Scott QC for Megrahi continued her review of the evidence regarding ingestion of the fatal suitcase at Luqa Airport in Malta, and argued that the trial court's conclusion that the bomb started its fatal progress there was one that they were not entitled to reach on the evidence presented at the trial. She also contended that the evidence was insufficient to entitle the trial court to reach the conclusion that the destruction of Pan Am 103 was a "Libyan plot".

Ms Scott indicated to the court that she was likely to conclude her submissions on Thursday morning. It will then be for Ronnie Clancy QC to respond on behalf of the Crown.

Crown's account of 12th procedural hearing

[The Crown Office (headquarters of the Scottish prosecution system) provides relatives of those killed aboard Pan Am 103 with accounts of proceedings in court in connection with the current Lockerbie appeal. I am grateful to one of these relatives (who, for the avoidance of doubt, is not Dr Jim Swire or, indeed, any of the UK relatives) for supplying me with the appended notes distributed by the Crown Office following the twelfth procedural hearing this past week.]

Petition for recovery of documents

On the 17th of March 2009 the Court granted an order of recovery in relation to a number of calls where they sufficiently related to the grounds of appeal and where the Court was persuaded that recovery will serve a proper purpose.

Call 1 in the appellant's petition sought material from 20 December 1988 to date showing ortending to show: (i) contact between police officers and other investigators (whether British, Maltese, German or American) and the witness Tony Gauci; and (ii) contact between prosecutor and those acting on their behalf and the witness Tony Gauci.

The Court refused to order recovery in relation to Call 1 on the basis that it was too wide and that it was not sufficiently related to any ground of appeal or any identifiable ground of appeal. The same remarks were made in relation to the refusal to grant any order for calls 1B (1.4) and 9. Call 1B (1.4) sought material relating to any US personnel contact with Tony Gauci. Call 9 sought material showing or tending to show information relating to the identity of the appellant was disclosed by the prosecuting authorities to journalists and other members of the press.

Where the Court did grant orders for recovery these were in relation to calls which were lessgeneral and more specific.

This specification was amended during the course of the hearing in February by the appellant's legal team. Some of you may have noticed reference to Call 1A and call 1B in the Opinion issued by the Court. These calls were added by the appellant during the proceedings.

In order to provide you with as much information as possible we thought it would be useful toprovide you with further detail in relation to the calls where recovery was granted by the Court.

•Call 1B (with the exception of 1.4) This call sought material relating to 21 specific areas which were listed in the appellant'spetition. For example material relating to the showing of photographs to Tony Gauci on specific dates and information on the preparation of photospreads shown on specific dates. In our note of the 23rd of February we provided a list of these calls which run from 1.1 to 1.21. These were granted with the exception of 1.4 as explained above.

•Call 1A This call sought all documents including photographs and videos showing or tending toshow the image of Abo Talb shown to Gauci on 2 October.

•Call 2 This call sought material showing or intending to show the enquiry in relation to the "potential" witness David Wright.

•Call 3 This call sought material from 5 September 1990 showing or tending to show policeactions and enquiries relating to the Feast of the Immaculate Conception (8 th December1988).

•Call 4 This call sought material showing or tending to show the conduct of the identification parade which took place on 13 April 1999 attended by the witness Tony Gauci.

Just because an order has been granted does not mean that the Crown holds any moreinformation than has already been provided to the defence. However it does require the Crown to check the material in its possession or the possession of the police forces subject to its directionto ensure that all material relating to the above calls is provided. If there is further material then this will be provided to the appellant's legal team unless there is a plea of public interest immunity by either the Crown or the UK Government.

Any material held by the Crown, which has not previously been provided to the defence and is covered by the calls granted by the Court, will require to be provided to the defence by Tuesday 9th June 2009.


Procedural Hearing 17th – 18th March 2009

People
The hearing called before three Judges - Lord Justice General, Lord Kingarth and Lord Eassie.

Counsel for the Crown are Ronald Clancy QC, Nick Gardiner and Douglas Ross

Counsel for the appellant are Maggie Scott QC, Jamie Gilchrist QC, Shelagh McCall and Martin Richardson.

Alan Summers QC appeared on behalf of the Advocate General for Scotland.

Hearing Grounds 1 and 2

The appeal hearing on Grounds 1 and 2 (Insufficient Evidence and Unreasonable Verdict) of theGrounds of Appeal is due to begin on Tuesday the 28th April 2009. The Court was addressed byMaggie Scott QC in relation to a lengthy written submission prepared by the appellant and lodged in the afternoon of the 17th March 2009. She wished to reassure the Court that the “bulk” of papers were made up of productions and authorities. She advised that the document was 298 pages long but that there were no new issues raised within the paper other than Ground 1 had subsumed into Ground 2. She did accept that there was considerably more information thancontained within the grounds of appeal.

Ronnie Clancy QC addressed the Court in relation to his concerns on the note lodged. The Crown had two weeks as of Tuesday 17th March 2009 to lodge a response to the appellant’s note and only received the 298 page document on the 17th March 2009. The Crown had only a limited opportunity to survey the note prior to the hearing but already observed that the note contained factual and legal arguments which were not contained in the original grounds of appeal. Ronnie Clancy QC indicated to the Court that of the list of 82 authorities, lodged with the note, 45 ofthose do not feature in any previous lists of authorities. There is a list of 99 productions which includes transcripts of evidence of 47 trial witnesses. Of these witnesses only 8 are mentioned in Grounds of Appeal 1 and 2. Thus there are 39 transcripts that the Crown could not reasonably have anticipated would feature in the note of argument. Moreover it is only when the note gets topage 100 that it starts to bear any resemblance to the grounds of appeal. There are detailed submissions within the note that are not mentioned in the grounds of appeal. The structure of the note does not follow the structure of the grounds of appeal which in practical terms will require the Crown to restructure their own already prepared argument to address the arguments now advanced.

Ronnie Clancy QC advised the Court that the effect of the note was such that the Crown will require to reserve its position on whether the note contains material that is outwith the scope of the grounds. In practical terms the Crown were not suggesting a requirement for an application to discharge the hearing fixed for April but the Crown would require further time to address the detailed ‘fresh’ arguments in the note. He advised the Court that it would be physically impossible to absorb all the new material in the 300 page note and prepare a response in such a short timescale.

The Court stated it was satisfied the Crown should have further time to provide a response, “in sofar as is practically possible”, to tailor its argument to the note lodged by the appellant. The Court allowed the Crown a further 2 weeks to lodge a response. This now gives the Crown until Tuesday 14th April 2009.

Hearing Grounds 3.1 – 3.1

Maggie Scott QC requested that the Crown provide further specification to the answers lodged to Grounds 3.1 to 3.3. She advised that before the appellant could consider whether the Grounds of Appeal required any adjustment further specification was required from the Crown. In addition the appellant could not decide whether any evidence should be led at the appeal before the requested specification was provided.

Ronnie Clancy QC advised the Court that the answers provided by the Crown were full and comprehensive. The Crown does not accept the principle that the appellant requires further specification because these grounds are accepted as being final grounds of appeal. He also did not accept that the Crown required to provide any further information to allow the appellant to decide whether they should lead any evidence. That was entirely a matter for them to decide. However the Crown, for its own purposes, wishes time to adjust the answers to 3.1 to 3.3. Although the Crown does not intend to provide answers to all the specific queries raised by the appellant we will address a number of them. The Crown wishes time to adjust these answers inlight of the reports recently lodged with the Court from the appellant’s trial lawyers and Counsel.

The Court allowed the Crown until Tuesday 9th June 2009 to adjust their answers to Grounds of Appeal 3.1 - 3.3. The Court stated that any adjustments to the Grounds of Appeal sought by the appellant will require leave of the Court and that any proposed adjustments should be intimated by Tuesday 23 June 2009.

The Court intimated that there will be a further procedural hearing in the week beginning the 29th June 2009. At this hearing the Court will consider the timing and further arrangements for grounds 3.1 to 3.3. No date has yet been fixed to hear these grounds. Maggie Scott QC urged the Court to fix a date for this hearing. Despite an initial estimate of 8 weeks both the defence and the Crown agreed that 12 weeks was a more realistic estimate of time required to address grounds 3.1 to 3.3. The Lord Justice General raised the possibility of splitting the hearing into segments. There was no opposition to this suggestion by any party.

Outstanding Petitions for Disclosure

There are two outstanding matters in relation to petitions for disclosure in the case. The first is formaterial in the non-prioritised grounds of appeal which fall into calls which were not argued at the February hearing. The second is in relation to a petition for recovery of scientific evidence which again relates to a non-prioritised ground of appeal. Parties agreed that given the argument in February the Court would only require to be addressed on matters specific to these petitions and this would substantially cut down the time required to argue. The Court will fix a 2 day hearing in the week beginning the 29th of June to deal with the two outstanding petitions for recovery.

Additional Information

In the course of the hearing Maggie Scott QC intimated to the Court that the appellant will not be present in Court for the appeal hearings. Apparently provisions are being made to allow the appellant to view the proceedings from Greenock prison.