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Wednesday, 3 February 2021
From the blogsite of Professor Robert Black QC.
On 29 January 2021 the lawyers for the Megrahi family lodged with the High Court of Justiciary an application for leave to appeal to the Supreme Court. They have until 8 February to lodge written submissions supporting these grounds. The Crown and the Advocate General for Scotland (representing the UK Government) then have until 22 February to lodge their responses in writing. The High Court may consider the matter based on written arguments, or it may call for a hearing. If the High Court refuses permission to appeal to the Supreme Court, the appellants can ask the Supreme Court itself to agree to consider the appeal.
In Scottish criminal appeal cases the UK Supreme Court cannot simply overturn a decision of the Scottish court; it only has jurisdiction to decide whether there might have been a breach of the appellant's rights under the European Convention on Human Rights. A decision that there had been such a breach would not by itself overturn the conviction but would result in the case being sent back to the Scottish court for it to consider the issue and apply the right test under the European Convention, which might or might not result in a different decision being reached in relation to the conviction.
Permission to appeal to the Supreme Court will be granted only if the case raises an arguable point of law of general public importance which ought to be considered by the Supreme Court.
The grounds of appeal which the Megrahi legal team wish the Supreme Court to consider can be summarised as follows:
1. The decision of the High Court not to allow all of the original grounds of appeal to form part of the appeal for the reasons it gave was in breach of Article 6 of the ECHR, the right to a fair trial. In August 2020 the High Court limited the grounds of appeal to the matters referred by the SCCRC in their 2020 referral (unreasonable verdict and non-disclosure of material relating to rewards and identification evidence) and also allowed in the issue of disclosure of the cables relating to the Crown witness Majid Giaka. The court expressly rejected the ground of appeal which argued that there was a systemic failure by the Crown to disclose material and also the particular instances of non-disclosure which the appellants argued demonstrated this systemic failure. The appellants contend that this is a matter which must be considered by the Supreme Court as it relates to the application of Article 6 and was wrongly decided.
2. The decision of the High Court not to overturn the Public Interest Immunity Certificate and order disclosure of the Protectively Marked Documents, and not to allow the non-disclosure of the documents to form a ground of appeal, also constituted a breach of Article 6. The appellants submit that these documents related to the special defence of incrimination put forward at trial and so in order for the appellant to receive a fair trial they should have been disclosed, and that this should have formed part of the grounds of appeal the court allowed to be argued.
3. As regards matters which did form part of the appeal and were argued at the full appeal hearing, the appellants' position is that the High Court erred in its decision to refuse Ground of Appeal 2, which related to non-disclosure of rewards material and non-disclosure of documents relating to Crown witness Tony Gauci’s identification evidence. They contend that the court applied the appropriate test wrongly and too narrowly and therefore breached the appellant’s right to a fair trial. In relation to Ground of Appeal 1, unreasonable verdict, they submit that the High Court’s decision to refuse this ground of appeal was also wrong, in that they took into account evidence which the trial court had ruled out, namely the evidence of the former co-accused Fhimah’s diaries. They contend that the High Court erred in substituting its own assessment of whether the diaries were admissible, as this meant they were not considering the case on the same evidence as the trial court did; and by so doing the appeal court has not returned a reasoned judgment on the verdict of the trial court and therefore again the appellant’s article 6 right has been breached.
The Megrahi legal team conclude by submitting that all three points raised are of general public importance and therefore meet the test for an application to appeal to the Supreme Court.
Tuesday, 2 February 2021
SUNDAY 31ST JANUARY 2021.
[This is the headline over a report in today's edition of Scotland on Sunday. It reads as follows:]
The trial of the only man ever convicted of the Lockerbie bombing has had a “catastrophic” effect on the Scottish criminal justice system, with the damage intensified by authorities’ “continuing avoidance” of a reexamination of the entirety of the evidence, according to the father of one of the victims.
Dr Jim Swire, whose daughter, Flora, died in the atrocity, said that steps were required to ensure the better administration of justice of Scotland, but warned that such an overhaul would “have to be propelled by a force outwith Scotland.”
Today marks the twentieth anniversary of the conviction of the late Abdelbaset al-Megrahi, who was found guilty of mass murder unanimously at a specially-convened Scottish court in the Netherlands.
Two weeks ago, judges at the Court of Criminal Appeal rejected a third appeal on behalf of the Libyan national, who died in 2012.
However, his family and numerous campaigners, Swire included, have long maintained he was the victim of a miscarriage of justice.
Now, Swire has told Scotland on Sunday that the biggest mass murder trial in British history continues to cast a long shadow over Scotland’s judiciary.
Swire sat throughout the trial at Camp Zeist, and collapsed in court after the verdict was read out. It was held before three Scottish judges - Lord Sutherland, Lord Coulsfield and Lord MacLean - with no jury. The trial’s architect, Professor Robert Black QC, initially proposed it should have involved an international panel of judges, presided over and chaired by a Scottish judge.
Asked if he thought Megrahi would have been convicted on the evidence presented under such an arrangement, Swire said: “Answers about questions based on ‘what if’ carry little weight, but from what I know now, this would seem to have been a far safer solution than that allowed at Zeist.
“Nelson Mandela himself warned me that ‘No one country should be complainant, prosecutor, and judge’. History, to my sorrow, has proved him right, for Scotland became all three at Zeist.”
Swire, now 84, said the past two decades had been “torturous,” and accused the Crown Office and “certain leaders” in Scotland’s legal profession of following a “readily visible course” based on the premise that the Netherlands court was infallible.
“Appeals have managed to avoid or ignore many of the aspects of the Zeist evidence in which failures are self evident, and have never fully addressed some of the further pieces of evidence which have emerged since,” he added.
“From a layman’s point of view, this seems to have been skilfully achieved. If I were asked to answer, ‘Why would they do that?’, I would have to reply that the impression given to me a layman is that they wish to conceal the profound failings within their system and its dangerous opacity to criticism, in order that damage to its reputation shall be minimised.”
Asked to respond to Swire’s criticisms, a Crown Office spokesman said: “The conviction of Abdelbaset al-Megrahi for the murder of 270 people at Lockerbie in 1988 has been reviewed and appealed twice in accordance with the law over twenty years.
“His conviction stands and the investigation by Scottish prosecutors and police officers into the involvement of others with him in the plot to attack an American aircraft continues.”
FROM THE BLOGSITE OF PROFESSOR ROBERT BLACK QC.
[What follows is excerpted from a report in today's edition of The Scotsman headlined Academic who defended Tehran against Lockerbie allegations accused of secretly working for Iranian government:]
Authorities in the US allege Kaveh Afrasiabi, a political scientist and veteran commentator on Iranian issues, of acting and conspiring to act as an unregistered agent of the Iranian state for more than a decade, during which time he made media appearances rejecting any suggestions that Iran was involved in the 1988 atrocity.
A complaint filed against Afrasiabi in a federal court in New York alleges that he was instructed over what to say to journalists by Iranian government officials assigned to the country’s permanent mission to the United Nations, before advocating positions and policies “favoured” by Iran.
The interviews included Afrasiabi’s views on a 2014 Al Jazeera documentary, entitled ‘Lockerbie: What Really Happened?’, which claimed the bombing was ordered by Iran and carried out by the Syrian-based terror group, the Popular Front for the Liberation of Palestine-General Command.
The documentary, which was subsequently screened in the Scottish Parliament, included testimony from Abolghasem Mesbahi, a former high-ranking Iranian intelligence agent, who said Iran had sanctioned the attack in revenge for the destruction in July 1988 of an Iranian airbus mistakenly shot down by USS Vincennes.
Afrasiabi, a former visiting scholar at Harvard University, went on to appear on an Al Jazeera interview, refuting the documentary’s premise. However, the complaint against him alleges he was advised on what to say by a press secretary at the Iranian mission, and told to state that he was giving his views as an “independent expert.”
During a phone call with the Iranian official on 11 March 2014, the complaint goes on, Afrasiabi was instructed “in sum and substance to explain that both the US and Britain completed their investigations” into the incident.
It also alleges that the day after the interview, Afrasiabi advised the Iranian government to threaten a $500 million lawsuit against Al Jazeera,” stating that it “would act as a brake on their current plan and might put a stop.” He added: “Soft diplomacy does not answer this specific situation.”
Afrasiabi also sent Al Jazeera an article prepared by his Iranian government contacts refuting the documentary’s claims, according to the complaint.
It adds that since 2007, Afrasiabi has “surreptitiously derived a significant portion of his income from compensation for services performed at the direction and under the control of the government of the Islamic republic of Iran,” claiming he received more than $265,000 over the period, as well as health insurance benefits.
The complaint also alleges Afrasiabi contacted an official in the US State Department, asking for its “latest thinking” on the Iran nuclear issue, without revealing the nature of his relationship with Iranian authorities.
Afrasiabi has described the allegations against him as “lies,” while Iran’s foreign ministry said the accusations were “baseless,” and accused the US of “a clear hostage-taking of Iranian nationals.”
Saturday, 16 January 2021
FROM THE BLOGSITE OF PROFESSOR ROBERT BLACK QC.
[Yesterday's decision by the High Court of Justiciary dismissing the posthumous appeal on behalf of Abdelbaset Megrahi receives extensive coverage in UK and overseas media. A selection, courtesy of Google News, can be found here.
An attempt by the family of the only man convicted of the 1988 Lockerbie bombing posthumously to clear his name has been rejected by the Court of Criminal Appeal in Scotland.
The family of Abdul Ali Baset al-Megrahi had appealed his conviction after a ruling by the Scottish Criminal Cases Review Commission (SCCRC) that “it was in the interests of justice” that his case was reconsidered.
Mr Anwar said that Ali al-Megrahi, the convicted man’s son, said that his family had been “left heartbroken by the decision of the Scottish courts, (but) maintained his father’s innocence and is determined to fulfil the promise he made to clear his name and that of Libya”.
The family has instructed its legal team to appeal to the UK Supreme Court and an application will be lodged within two weeks. (...)
Megrahi previously lost an appeal against his conviction in 2002. Five years later the SCCRC recommended that he should be granted the second appeal, which he later dropped.
Al-Megrahi insisted in his authorised biography, published in the year of his death, that a Scottish government decision to agree his early release from prison was conditional on his decision to drop his second appeal.
He said that Kenny MacAskill, who was then the Scottish justice secretary, had suggested the deal to a Libyan government official.
In the latest appeal the court was not asked by the SCCRC to consider a tiny fragment of circuit board, believed to have been from the bomb’s timer. This, campaigners insist, was a key piece of evidence that could have cleared al-Megrahi’s name.
After this morning’s decision the al-Megrahi family demanded the release of secret evidence held by the UK government that they believe incriminates others such as Iran and a Syrian-Palestinian group. (...)
In December, on the 32nd anniversary of the bombing, William Barr, the US attorney-general, announced new criminal charges against an alleged bombmaker involved in the atrocity.
Abu Agila Masud, another former Libyan intelligence officer, allegedly admitted to assembling the bomb that blew up the plane as it passed over Lockerbie en route from London to New York. Masud was the third person to face charges in the attack after al-Megrahi and another Libyan, Lamin Khalifa Fhimah, were charged nearly 30 years ago. Fhimah was found not guilty in 2001.
It was Mr Barr who announced the charges against al-Megrahi and Fhimah in 1991, saying at the time: “This investigation is by no means over.” Al-Megrahi’s supporters claim that Mr Barr’s recent intervention weighed heavily on the appeal court judges.
A source said: “For the judges to overturn the conviction would be absolutely momentous and I don’t think they have the stomach for that. William Barr piled on the pressure by announcing new indictments. It was too much of a hot potato for them.”
Mr Anwar said the first ground for appeal — that “no reasonable jury properly directed could have convicted” — was built largely around the evidence of Tony Gauci, who died in 2016.
In the 2001 trial, Mr Gauci, a Maltese shopkeeper, identified al-Megrahi as the man who bought clothes from him that were later packed in a suitcase containing the bomb. After the trial it was disclosed that he had received $2 million from the US authorities.
In his judgment Lord Carloway said the original trial had given due consideration to Mr Gauci’s identification.
Mr Anwar said the second ground of appeal — the failure to disclose information to the defence — hinged on a “compatibility issue” arising from a question relating to a breach of human rights. This will be the basis for the application to the Supreme Court.
[A further article in The Times, headlined System cannot admit it made mistake with Lockerbie, says lawyer who designed first trial contains the following:]
The Scottish court system is unable to acknowledge that a mistake has been made, the lawyer who designed the 2001 Lockerbie trial has said.
Robert Black, emeritus professor of Scots Law at the University of Edinburgh, drew up plans to enable a Scottish court to sit on neutral territory in the Netherlands but when the trial ended he was convinced that he had witnessed a miscarriage of justice.
He said yesterday that the Scottish criminal justice system was unable to acknowledge “a mistake has been made” in the conviction of Abdul Baset al-Megrahi and it was “a matter of grave concern” that the most recent appeal had been so narrowly restricted to certain legal areas. The Scottish Criminal Case Review Committee allowed al-Megrahi’s posthumous appeal on only two grounds: that the verdict had been unreasonable and that some evidence had not been disclosed to the defence.
Four other grounds for appeal were rejected by the committee, including evidence about a fragment from a circuit board and a theory that the suitcase that contained the bomb had not been loaded onto an aircraft in Malta.
The Crown argued that the circuit board, part of a timing device, was one of many sold to the Libyan government by Mebo, a Swiss company. It was found in the remains of a shirt collar, which in turn led to a shop in Malta owned by Tony Gauci. Campaigners for al-Megrahi say forensic analysis has shown the circuit board was coated in pure tin and not in a tin-lead alloy, the only kind supplied by Mebo. Independent scientists, consulted by the Crown, had noticed the difference but maintained the tin fragment and the tin-lead amalgam were “similar in all respects”.
Professor Black also cited evidence the bomb suitcase was put on at Heathrow before luggage from Malta arrived.
Friday, 15 January 2021
FROM THE BLOG SITE OF PROFESSOR ROBERT BLACK QC.
The High Court has dismissed the posthumous appeal brought on behalf of Abdelbaset Megrahi. The 64-page opinion of the court can be read here.
As regards the first ground of appeal, the court concludes in paragraph 87 that, notwithstanding evidence challenging 7 December 1988 as the date of purchase of the items from Tony Gauci's shop, and notwithstanding concerns about the evidence supporting Gauci's "identification" of Megrahi, "... the contention that the trial court reached a verdict that no reasonable court could have reached is rejected. On the evidence at trial, a reasonable jury, properly directed, would have been entitled to return a guilty verdict."
As regards the ground of appeal founding upon failure by the Crown to disclose material that would have been helpful to the defence the court concludes that even if the material had been disclosed it would not have made a difference to the guilty verdict. Paragraph 135 of the opinion reads: "The contention that the Crown failed to disclose material which would have created a real prospect of a different verdict is rejected."
The outcome of the appeal is a cogent illustration of just how difficult it is to have the Scottish criminal justice system acknowledge that a mistake has been made, as I continue to believe has happened here. It is, I contend, a matter of grave public concern, that the appeal was so narrowly confined and that issues such as the metallurgy of the circuit board fragment and Dr Morag Kerr's findings regarding the loading of the bomb suitcase at Heathrow were not ventilated.
Thursday, 14 January 2021
[What follows is the text of a press release issued by Aamer Anwar & Co:]
On Friday 15th January at 09.30 GMT the opinion of the Scottish Appeal Court will be issued to the family as delivered by Lord Carloway, The Lord Justice General in the appeal against conviction by the representative of The Late Abdelbaset Ali Mohmed Al Megrahi (Appellant) against Her Majesty’s Advocate (Respondent).
The non-appearance advising will be available online (https://www.scotcourts.gov.uk/search-judgments/high-court) at 12 noon.
A full statement at 10.00 GMT will be issued on behalf of the family of the late Abdelbaset Al-Megrahi by their lawyer Aamer Anwar, embargoed until 12 noon GMT.
Should you require to carry out an interview, Mr Anwar will be available in Glasgow for face to face interviews (Covid compliant) from 11am onwards or alternatively should you require a zoom, facetime or radio interview please contact our office on 0141 429 7090.