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.”
Showing posts sorted by relevance for query Ronnie Clancy. Sort by date Show all posts
Showing posts sorted by relevance for query Ronnie Clancy. Sort by date Show all posts
Wednesday 19 August 2009
Thursday 6 November 2008
Avizandum
The Criminal Appeal Court (consisting of Lord Justice General Hamilton, Lords Kingarth and Wheatley) today reserved judgement in Abdelbaset Megrahi's application for interim liberation pending his appeal. No indication was given as to how long this period of avizandum (consideration) would be. There is a further sitting of the court already fixed for 27 November, but it is devoutly to be hoped that their Lordships will be in a position to announce their decision before then.
As anticipated in a previous post on this blog, the appellant's counsel, Maggie Scott QC, founded on (1) the substantial nature of the appellant's grounds of appeal, including the fact that some of them have the support of the Scottish Criminal Cases Review Commission; (2) the delay that has already occurred in the case and the further delay that is likely before the appeal is heard; and (3) the state of the appellant's health.
The Crown, represented by Ronnie Clancy QC, opposed the granting of bail, principally on the ground of the gravity of the crime of which the appellant stands convicted (the murder of 270 persons), but also on the basis that at least some of the grounds of appeal were unlikely to succeed; that the delays which had occurred were not (at least primarily) the fault of the Crown (this submission causing a measure of astonishment amongst many of those present in the courtroom); and that the appellant's illness (which the Crown accepted as genuine) could be satisfactorily treated in Greenock Prison.
The court investigated what conditions should be attached to interim liberation, if granted, which at least indicates that the possibility is being taken seriously.
The report of today's hearing on the BBC News website can be read here.
As anticipated in a previous post on this blog, the appellant's counsel, Maggie Scott QC, founded on (1) the substantial nature of the appellant's grounds of appeal, including the fact that some of them have the support of the Scottish Criminal Cases Review Commission; (2) the delay that has already occurred in the case and the further delay that is likely before the appeal is heard; and (3) the state of the appellant's health.
The Crown, represented by Ronnie Clancy QC, opposed the granting of bail, principally on the ground of the gravity of the crime of which the appellant stands convicted (the murder of 270 persons), but also on the basis that at least some of the grounds of appeal were unlikely to succeed; that the delays which had occurred were not (at least primarily) the fault of the Crown (this submission causing a measure of astonishment amongst many of those present in the courtroom); and that the appellant's illness (which the Crown accepted as genuine) could be satisfactorily treated in Greenock Prison.
The court investigated what conditions should be attached to interim liberation, if granted, which at least indicates that the possibility is being taken seriously.
The report of today's hearing on the BBC News website can be read here.
Thursday 3 July 2008
Statement by Professor Hans Köchler
Lockerbie Appeal:
Is the insistence on the right to a fair trial absurd and illogical?
Scottish judiciary has to abide by the standards of the European Convention on Human Rights
Statement by Dr. Hans Köchler
Vienna, 3 July 2008
P/RE/20161c
According to reports in the Scottish media, Crown counsel Ronnie Clancy QC has branded as "absurd" and "illogical" demands that Abdelbaset Ali Mohmed al Megrahi's appeal before the High Court of Justiciary shall not be restricted to the grounds of appeal given by the Scottish Criminal Cases Review Commission (SCCRC).
On 28 June 2007 the SCCRC had announced its decision to refer Mr al Megrahi's case back to the High Court of Justiciary for a new appeal. The Commission had given six reasons for its decision some of which it kept secret upon announcement. Obviously (and not only in view of its "secretive" nature), the list of grounds given by the SCCRC cannot be considered as an exhaustive enumeration of all possible grounds of appeal. The grounds given by the SCCRC are simply those that led that body to suspect a miscarriage of justice. The reasons revealed by the SCCRC to the public are almost identical to the points I had raised in my trial and appeal reports (in 2001 and 2002 respectively) which I had submitted to the United Nations.
Contrary to the Crown's position, it is neither absurd nor illogical if an appellant expects an appeal court to hear additional grounds of appeal - if new information has indeed become available. Rather, it would be absurd and illogical to limit the appeal to a fixed number of grounds, i.e. - as regards the present case - to those grounds given in last year's decision of the SCCRC (whereby the evidence related to some of the grounds is still being kept secret).
In order to be fair, an appeal process must be comprehensive. Justice requires truth. Certainty "beyond a reasonable doubt" can not be established if the Defence is prevented from giving the grounds of appeal on the basis of the evidence that is available to it. A court's judgment must be based on arguments. To determine that certain issues and facts are excluded from being considered (because the presentation of some grounds of appeal is rejected by one party) invalidates the entire argumentative process.
A "fair trial" according to Art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention on Human Rights") requires that no one interferes into the competence of the Defence and that, accordingly, additional evidence that has become available is also heard. The limitation of the grounds of appeal is not only contrary to the rationale of a judicial review as such and, thus, intrinsically unfair, but it is also illogical if the goal of an appeal process is indeed a comprehensive review of the original verdict. There can be no rational argumentation of an appeal if the appellant is told what grounds he is allowed to raise and what not.
Rather, in terms of the labels used by the Crown counsel, it could be argued that the original verdict of the High Court of Justiciary was "absurd" and "illogical" since it declared one of the two Libyan suspects "guilty" and the other one "not guilty" - while the entire logic of the indictment was based on the theory of the two suspects having conspired together to ingest an explosive device at Luqa airport (Malta) to be transported in a piece of unaccompanied luggage to Frankfurt airport and from there on to Heathrow.
The effort at limiting the scope of the appeal by restricting the grounds that can be heard is especially serious in view of the British Government's insistence on withholding evidence from the Defence by means of a Public Interest Immunity (PII) certificate. Should the efforts of the Crown and the British Government succeed, the appellant would again be denied his right to a fair trial and will thus be entitled to seek redress from the European Court of Human Rights.
Dr Hans Köchler
Is the insistence on the right to a fair trial absurd and illogical?
Scottish judiciary has to abide by the standards of the European Convention on Human Rights
Statement by Dr. Hans Köchler
Vienna, 3 July 2008
P/RE/20161c
According to reports in the Scottish media, Crown counsel Ronnie Clancy QC has branded as "absurd" and "illogical" demands that Abdelbaset Ali Mohmed al Megrahi's appeal before the High Court of Justiciary shall not be restricted to the grounds of appeal given by the Scottish Criminal Cases Review Commission (SCCRC).
On 28 June 2007 the SCCRC had announced its decision to refer Mr al Megrahi's case back to the High Court of Justiciary for a new appeal. The Commission had given six reasons for its decision some of which it kept secret upon announcement. Obviously (and not only in view of its "secretive" nature), the list of grounds given by the SCCRC cannot be considered as an exhaustive enumeration of all possible grounds of appeal. The grounds given by the SCCRC are simply those that led that body to suspect a miscarriage of justice. The reasons revealed by the SCCRC to the public are almost identical to the points I had raised in my trial and appeal reports (in 2001 and 2002 respectively) which I had submitted to the United Nations.
Contrary to the Crown's position, it is neither absurd nor illogical if an appellant expects an appeal court to hear additional grounds of appeal - if new information has indeed become available. Rather, it would be absurd and illogical to limit the appeal to a fixed number of grounds, i.e. - as regards the present case - to those grounds given in last year's decision of the SCCRC (whereby the evidence related to some of the grounds is still being kept secret).
In order to be fair, an appeal process must be comprehensive. Justice requires truth. Certainty "beyond a reasonable doubt" can not be established if the Defence is prevented from giving the grounds of appeal on the basis of the evidence that is available to it. A court's judgment must be based on arguments. To determine that certain issues and facts are excluded from being considered (because the presentation of some grounds of appeal is rejected by one party) invalidates the entire argumentative process.
A "fair trial" according to Art 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention on Human Rights") requires that no one interferes into the competence of the Defence and that, accordingly, additional evidence that has become available is also heard. The limitation of the grounds of appeal is not only contrary to the rationale of a judicial review as such and, thus, intrinsically unfair, but it is also illogical if the goal of an appeal process is indeed a comprehensive review of the original verdict. There can be no rational argumentation of an appeal if the appellant is told what grounds he is allowed to raise and what not.
Rather, in terms of the labels used by the Crown counsel, it could be argued that the original verdict of the High Court of Justiciary was "absurd" and "illogical" since it declared one of the two Libyan suspects "guilty" and the other one "not guilty" - while the entire logic of the indictment was based on the theory of the two suspects having conspired together to ingest an explosive device at Luqa airport (Malta) to be transported in a piece of unaccompanied luggage to Frankfurt airport and from there on to Heathrow.
The effort at limiting the scope of the appeal by restricting the grounds that can be heard is especially serious in view of the British Government's insistence on withholding evidence from the Defence by means of a Public Interest Immunity (PII) certificate. Should the efforts of the Crown and the British Government succeed, the appellant would again be denied his right to a fair trial and will thus be entitled to seek redress from the European Court of Human Rights.
Dr Hans Köchler
Wednesday 21 January 2009
The wheels of justice...
... grind exceeding slow.
In my coverage on this blog of the tenth procedural hearing on 18 December 2008, I wrote the following:
'The remaining issue discussed was the timing of the next procedural hearing (to consider the further petitions for disclosure lodged on behalf of the appellant before the ninth procedural hearing on 27 and 28 November). Maggie Scott QC for Mr Megrahi proposed that it should be on a date between 21 and 23 January, it having been indicated by the court administrative office that all three of the judges were available then. Ronnie Clancy QC argued that this was, for various reasons, far too early for the Crown and that a date should be fixed in February or March. The Advocate General concurred. The court indicated that it would consider these submissions and intimate its decision on the date of the next hearing “in early course”.'
The dates fixed by the court for this procedural hearing are Wednesday 18th to Friday 20th February 2009.
In my coverage on this blog of the tenth procedural hearing on 18 December 2008, I wrote the following:
'The remaining issue discussed was the timing of the next procedural hearing (to consider the further petitions for disclosure lodged on behalf of the appellant before the ninth procedural hearing on 27 and 28 November). Maggie Scott QC for Mr Megrahi proposed that it should be on a date between 21 and 23 January, it having been indicated by the court administrative office that all three of the judges were available then. Ronnie Clancy QC argued that this was, for various reasons, far too early for the Crown and that a date should be fixed in February or March. The Advocate General concurred. The court indicated that it would consider these submissions and intimate its decision on the date of the next hearing “in early course”.'
The dates fixed by the court for this procedural hearing are Wednesday 18th to Friday 20th February 2009.
Tuesday 17 June 2008
The scope of the appeal
The procedural hearing that started today is not, after all, about the issue of disclosure of the mystery documents. It is about whether, as the Crown argues, Mr Megrahi’s new appeal should be limited solely to the grounds on which the Scottish Criminal Cases Review Commission referred his case back to the Criminal Appeal Court, or whether other issues can be ventilated as well. Existing appellate decisions in earlier cases have held that the grounds of appeal should not be limited to those issues accepted by the SCCRC. This is why the current procedural hearing is being heard by a bench of five judges: so that the earlier three-judge decisions can, if the court is so minded, be overruled.
According to Ronnie Clancy QC for the Crown, allowing the appeal to go beyond the specific matters on which the SCCRC referred the case back to the court would be “absurd” and “illogical”.
Brief accounts of today's proceedings can be found on the BBC News website and on the icDumfries website.
According to Ronnie Clancy QC for the Crown, allowing the appeal to go beyond the specific matters on which the SCCRC referred the case back to the court would be “absurd” and “illogical”.
Brief accounts of today's proceedings can be found on the BBC News website and on the icDumfries website.
Thursday 7 May 2009
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.
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.
Saturday 15 October 2016
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).]
Wednesday 28 May 2008
Procedural hearing: second day
It appears that the Lord Advocate does not agree with the Advocate General’s suggestion that the solution to the impasse over the disclosure of the mysterious foreign document would be for it to be disclosed to special (security-vetted) counsel rather than to Megrahi’s regular legal team.
Ronnie Clancy QC, appearing for the Lord Advocate, suggested that the way forward might be for limited disclosure – perhaps by way of a summary of the document – to be made to Megrahi and his lawyers. He is reported as saying, “The principle about involving the defence to the maximum extent looms large here. The Lord Advocate is mindful of the difficulty that the petitioner [Megrahi] would have in bringing a ground of appeal without even limited disclosure." He acknowledged that the Advocate General, who represents the UK Government in legal matters north of the border, may be "less enthusiastic" about the idea. "I don't understand the Advocate General to have ruled out limited disclosure at this stage," he added.
As might be expected, Megrahi’s counsel are strongly opposed to the Advocate General’s proposal and to anything less than full disclosure of the document to Megrahi’s current legal representatives.
Maggie Scott QC, senior counsel for the Libyan, is reported as saying: "Megrahi's position here is that he wants disclosure of these documents in order to exercise his right of appeal. My main concern is any proposed procedure which determines the substance of the appeal taking part in the absence of Megrahi or his defence counsel."
The report on the BBC News website can be read here.
[Reports on the first day of the hearing by Scotland's two daily "heavies", The Herald and The Scotsman, can be seen here and here.]
Ronnie Clancy QC, appearing for the Lord Advocate, suggested that the way forward might be for limited disclosure – perhaps by way of a summary of the document – to be made to Megrahi and his lawyers. He is reported as saying, “The principle about involving the defence to the maximum extent looms large here. The Lord Advocate is mindful of the difficulty that the petitioner [Megrahi] would have in bringing a ground of appeal without even limited disclosure." He acknowledged that the Advocate General, who represents the UK Government in legal matters north of the border, may be "less enthusiastic" about the idea. "I don't understand the Advocate General to have ruled out limited disclosure at this stage," he added.
As might be expected, Megrahi’s counsel are strongly opposed to the Advocate General’s proposal and to anything less than full disclosure of the document to Megrahi’s current legal representatives.
Maggie Scott QC, senior counsel for the Libyan, is reported as saying: "Megrahi's position here is that he wants disclosure of these documents in order to exercise his right of appeal. My main concern is any proposed procedure which determines the substance of the appeal taking part in the absence of Megrahi or his defence counsel."
The report on the BBC News website can be read here.
[Reports on the first day of the hearing by Scotland's two daily "heavies", The Herald and The Scotsman, can be seen here and here.]
Thursday 18 December 2008
Proceedings at tenth (public) procedural hearing
Today’s procedural hearing was largely concerned with fine-tuning the protocol drafted by the court regarding the appointment, powers and duties of the special counsel to be appointed in connection with the document relating to timers in respect of which the UK Foreign Secretary has asserted public interest immunity on grounds of national security and international relations.
This document has not been made public and so it is difficult for observers to form an opinion as to its contents or, indeed, to follow the submissions made by the appellant’s counsel and the Advocate General on behalf of the Foreign Secretary. However, the document has now been finalised and the person suggested by the appellant’s legal team has been appointed by the court to perform this function, subject to his (or her) successfully undergoing the necessary security vetting. The court urged the relevant authorities to carry out the vetting of the special counsel (and any solicitor appointed by him to assist in the performance of his duties) with the very highest urgency. The Crown and the Advocate General were instructed to prepare summaries of the submissions made by them at the closed hearing (from which the appellant’s lawyers were excluded) so that they can be handed over to the special counsel as soon as his vetting is successfully concluded. The appellant’s legal team indicated that they would be in a position fully to brief the special counsel by 23 January 2009.
The remaining issue discussed was the timing of the next procedural hearing (to consider the further petitions for disclosure lodged on behalf of the appellant before the ninth procedural hearing on 27 and 28 November). Maggie Scott QC for Mr Megrahi proposed that it should be on a date between 21 and 23 January, it having been indicated by the court administrative office that all three of the judges were available then. Ronnie Clancy QC argued that this was, for various reasons, far too early for the Crown and that a date should be fixed in February or March. The Advocate General concurred. The court indicated that it would consider these submissions and intimate its decision on the date of the next hearing “in early course”.
Still no obvious sign, therefore, that either the Crown or the Advocate General have revised their Fabian tactics in the light of the appellant's medical condition or any other factors.
This document has not been made public and so it is difficult for observers to form an opinion as to its contents or, indeed, to follow the submissions made by the appellant’s counsel and the Advocate General on behalf of the Foreign Secretary. However, the document has now been finalised and the person suggested by the appellant’s legal team has been appointed by the court to perform this function, subject to his (or her) successfully undergoing the necessary security vetting. The court urged the relevant authorities to carry out the vetting of the special counsel (and any solicitor appointed by him to assist in the performance of his duties) with the very highest urgency. The Crown and the Advocate General were instructed to prepare summaries of the submissions made by them at the closed hearing (from which the appellant’s lawyers were excluded) so that they can be handed over to the special counsel as soon as his vetting is successfully concluded. The appellant’s legal team indicated that they would be in a position fully to brief the special counsel by 23 January 2009.
The remaining issue discussed was the timing of the next procedural hearing (to consider the further petitions for disclosure lodged on behalf of the appellant before the ninth procedural hearing on 27 and 28 November). Maggie Scott QC for Mr Megrahi proposed that it should be on a date between 21 and 23 January, it having been indicated by the court administrative office that all three of the judges were available then. Ronnie Clancy QC argued that this was, for various reasons, far too early for the Crown and that a date should be fixed in February or March. The Advocate General concurred. The court indicated that it would consider these submissions and intimate its decision on the date of the next hearing “in early course”.
Still no obvious sign, therefore, that either the Crown or the Advocate General have revised their Fabian tactics in the light of the appellant's medical condition or any other factors.
Wednesday 20 August 2008
Seventh (public) procedural hearing
Today's procedural hearing related to the appellant's two petitions for access to material used at the Zeist trial, or referred to in material used at the trial. In respect of one petition, concerning documents and photographs relevant to the (alleged) identification of Abdelbaset Megrahi by the Maltese shopkeeper, Tony Gauci, the Crown (represented by Ronnie Clancy QC) intimated that it was no longer opposing the appellant's application to be allowed to show the originals to an expert psychologist. The court accordingly granted the prayer of the petition.
As regards the second petition, relating to the appellant's claim to be allowed access to documents and productions used at the Zeist trial (and to other material referred to in such documents), and to be permitted to subject them to forensic scientific examination, the Crown's opposition was maintained. However, after an adjournment of twenty minutes, the court (Lord Justice General Hamilton, Lords Kingarth and Eassie) granted the prayer of the petition, subject to satisfactory arrangements being agreed between the Crown and the appellant's representatives for the security of the productions during the forensic examination.
The fact that the court, without reserving judgement, granted the application makes it unnecessary for me to try to explain the convoluted grounds on which the Crown opposed the application. This is something that (despite having taken ten pages of notes during the hearing) I would have found it difficult to do for a (predominantly) lay readership. Perhaps the most important aspect of today's hearing is the ease and speed with which the court dismissed the Crown's submissions and granted the appellant's requests.
[For some light relief, why not glance at this piece from Radar?]
As regards the second petition, relating to the appellant's claim to be allowed access to documents and productions used at the Zeist trial (and to other material referred to in such documents), and to be permitted to subject them to forensic scientific examination, the Crown's opposition was maintained. However, after an adjournment of twenty minutes, the court (Lord Justice General Hamilton, Lords Kingarth and Eassie) granted the prayer of the petition, subject to satisfactory arrangements being agreed between the Crown and the appellant's representatives for the security of the productions during the forensic examination.
The fact that the court, without reserving judgement, granted the application makes it unnecessary for me to try to explain the convoluted grounds on which the Crown opposed the application. This is something that (despite having taken ten pages of notes during the hearing) I would have found it difficult to do for a (predominantly) lay readership. Perhaps the most important aspect of today's hearing is the ease and speed with which the court dismissed the Crown's submissions and granted the appellant's requests.
[For some light relief, why not glance at this piece from Radar?]
Thursday 27 November 2008
Ninth (public) procedural hearing: first day
Today’s lengthy procedural hearing was taken up with (a) submissions on the appellant’s most recent petition for disclosure of material in the hands of the Crown; and (b) case management and timetabling.
As regards (a), the material in question is mainly the pre-trial witness statements of the more than 1100 witnesses who featured on the Crown’s list at the Zeist trial. The appellant’s lawyers claim that upwards of 800 of these statements have not yet been handed over. The Crown stated today that it was willing to do so, subject to any public interest immunity issues that might be raised by the Advocate General on behalf of the United Kingdom Government. The Advocate General’s counsel, Raymond Doherty QC, indicated that in the vast majority of cases there was unlikely to be any PII concern and that these statements could be handed over by the Crown within fourteen days. In respect of any few statements in respect of which the UK Government’s assessment was that PII issues arose, the matter would have to return to the court.
As regards (b) Maggie Scott QC for Megrahi asked that the Crown be ordered to answer in writing the appellant’s detailed grounds of appeal. This would serve the useful purpose of clarifying the issues of fact and law on which there was genuine dispute between the parties and of identifying the factual and legal issues on which the parties were at one. The Crown responded that this was not normal Scottish practice and questioned whether it would serve any beneficial function.
The appellant’s legal team had been asked for this hearing to prioritise their grounds of appeal and to indicate the order in which the court should be asked to address them. Ms Scott stated that the appellant wished first consideration to be given to grounds of appeal 1 and 2 relating to the reasonableness of the verdict (ie whether any reasonable tribunal, on the evidence led, could have convicted Megrahi). She stated that the appellant’s legal team would be in a position to argue these grounds in April 2009 and that she anticipated that perhaps four weeks of court time would be required. The next chapter to be addressed should be those portions of ground of appeal 3 relating to the evidence of the Maltese shopkeeper, Tony Gauci. Ms Scott tentatively suggested that this section of the hearing might be scheduled for July 2009 and that as much as eight weeks might be required.
Ms Scott also requested the court at this stage to forward the grounds of appeal to the lawyers who represented Mr Megrahi at the original trial, in order to give them an opportunity, if so minded, to respond to the issues raised and the criticisms made of them in ground of appeal 4 relating to defective or inadequate representation.
The Crown did not indicate any strong views on these prioritising and timetabling matters. The one particularly interesting thing that Ronnie Clancy QC for the Crown disclosed was that, as of today, the Crown did not concede that even if Tony Gauci’s evidence were wholly discredited there remained insufficient evidence to justify the conviction of Megrahi. This is a view that few legal observers share.
The hearing was continued until tomorrow (Friday). It is to be expected that the court will then issue its decision on most of the issues outlined above. The other matter to be dealt with tomorrow is the protocol governing relations between the appellant’s legal team and the special (security-vetted) advocate appointed to consider the mystery document(s) in respect of which the UK Foreign Secretary has already asserted public interest immunity and the non-disclosure of which formed one of the Scottish Criminal Cases Review Commission’s grounds for holding that a miscarriage of justice may have occurred. It is possible that when these matters are discussed tomorrow, the court will have to go into closed session.
The report on the BBC News website can be read here. The Herald's report of the proceedings can be read here. It appears to be the only Scottish or UK newspaper to provide any coverage. Like the BBC, it concentrates on the application for the criminal records of witnesses to be disclosed. Trust the British media to focus on the peripheral and inessential!
As regards (a), the material in question is mainly the pre-trial witness statements of the more than 1100 witnesses who featured on the Crown’s list at the Zeist trial. The appellant’s lawyers claim that upwards of 800 of these statements have not yet been handed over. The Crown stated today that it was willing to do so, subject to any public interest immunity issues that might be raised by the Advocate General on behalf of the United Kingdom Government. The Advocate General’s counsel, Raymond Doherty QC, indicated that in the vast majority of cases there was unlikely to be any PII concern and that these statements could be handed over by the Crown within fourteen days. In respect of any few statements in respect of which the UK Government’s assessment was that PII issues arose, the matter would have to return to the court.
As regards (b) Maggie Scott QC for Megrahi asked that the Crown be ordered to answer in writing the appellant’s detailed grounds of appeal. This would serve the useful purpose of clarifying the issues of fact and law on which there was genuine dispute between the parties and of identifying the factual and legal issues on which the parties were at one. The Crown responded that this was not normal Scottish practice and questioned whether it would serve any beneficial function.
The appellant’s legal team had been asked for this hearing to prioritise their grounds of appeal and to indicate the order in which the court should be asked to address them. Ms Scott stated that the appellant wished first consideration to be given to grounds of appeal 1 and 2 relating to the reasonableness of the verdict (ie whether any reasonable tribunal, on the evidence led, could have convicted Megrahi). She stated that the appellant’s legal team would be in a position to argue these grounds in April 2009 and that she anticipated that perhaps four weeks of court time would be required. The next chapter to be addressed should be those portions of ground of appeal 3 relating to the evidence of the Maltese shopkeeper, Tony Gauci. Ms Scott tentatively suggested that this section of the hearing might be scheduled for July 2009 and that as much as eight weeks might be required.
Ms Scott also requested the court at this stage to forward the grounds of appeal to the lawyers who represented Mr Megrahi at the original trial, in order to give them an opportunity, if so minded, to respond to the issues raised and the criticisms made of them in ground of appeal 4 relating to defective or inadequate representation.
The Crown did not indicate any strong views on these prioritising and timetabling matters. The one particularly interesting thing that Ronnie Clancy QC for the Crown disclosed was that, as of today, the Crown did not concede that even if Tony Gauci’s evidence were wholly discredited there remained insufficient evidence to justify the conviction of Megrahi. This is a view that few legal observers share.
The hearing was continued until tomorrow (Friday). It is to be expected that the court will then issue its decision on most of the issues outlined above. The other matter to be dealt with tomorrow is the protocol governing relations between the appellant’s legal team and the special (security-vetted) advocate appointed to consider the mystery document(s) in respect of which the UK Foreign Secretary has already asserted public interest immunity and the non-disclosure of which formed one of the Scottish Criminal Cases Review Commission’s grounds for holding that a miscarriage of justice may have occurred. It is possible that when these matters are discussed tomorrow, the court will have to go into closed session.
The report on the BBC News website can be read here. The Herald's report of the proceedings can be read here. It appears to be the only Scottish or UK newspaper to provide any coverage. Like the BBC, it concentrates on the application for the criminal records of witnesses to be disclosed. Trust the British media to focus on the peripheral and inessential!
Thursday 19 May 2011
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.]
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.]
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