Lockerbie : What Price Justice?

This headline comes from this weeks Private Eye magazine in the UK, which carries an article examining the claims in a recent BBC documentary regarding financial rewards made to witnesses who gave evidence at the original Lockerbie trial at Camp Zeist in 2001.


In BBC2's recent 'Conspiracy Files' about the blowing up of Pan Am flight 103 over Lockerbie, Richard Marquise, the FBI agent who headed the US side of the investigation 20 years ago, emphatically denied that any reward money had been paid to witnesses.

In reply to a claim by Edwin Bollier, the boss of a Swiss company said to have manufactured the timing device used in the bomb, that he had been offered money by the FBI, Marquise said: "I can promise you we offered everyone who was involved in the case the exact same - nothing. They were never offered anything for their testimony, for their information concerning the case."

Clearly this was a case of the left hand of American Law enforcement not knowing what the right was up to because Majid Giaka, the "star" witness at the trial of the two Libyans originally accused of the bombing, was handsomely rewarded by the CIA.

Readers of Paul Foot's special report on the atrocity may remember that a series of internal CIA cables about Giaka - a proven liar and cheat who claimed he was in the Libyan Intelligence when in fact he merely repaired their cars - showed that agents themselves thought he was a man of little credibility. But these were originally withheld from the 2001 trial of Al-Megrahi and his co-accused, Fhimah (who was acquitted by the Scottish Judges). Those same judges agreed that Giaka's evidence - that he saw the pair with a large brown case at Luqa, the Maltese airport - was "at best grossly exaggerated and at worst untrue", and "largely motivated by financial considerations".

Curiously in convicting Megrahi, however, they never questioned why the prosecution should rely on such a corrupt and desperate liar and overlooked the fact that the names of both defendants had come from Giaka in the first place. Instead they relied on the only other evidence that incriminated Megrahi : his identification 11 years after the event by Tony Gauci, the Maltese shopkeeper who said he sold him the 13 items of clothing that were packed around the bomb. But Gauci had seen a picture of Megrahi only a few days before he made the crucial identification. This too was withheld from the original trial.

Inconsistencies and doubts surrounding Gauci's identification now form one of the six grounds outlined by the Scottish Criminal Cases Review Commission (SCCRC) for concluding Megrahi may be the victim of a miscarriage of justice. There were unconfirmed reports that part of the concerns outlined in the confidential 80-page SCCRC submission were that Gauci too was paid a large amount of CIA "compensation".

And for final confirmation that the Americans paid out money, the 'Reward for Justice' website of the US state department outlines the Lockerbie case. It says it has "paid more than $72m to over 50 people who have provided information that prevented international terrorist attacks or brought to justice those involved in prior acts."

(c) Private Eye 2008

Appeal Court in Lockerbie Move

The BBC is reporting that the High Court in Edinburgh will appoint a security-vetted defender, in a closed court session, to view the confidential documents that the SCCRC referred to last year as one area in their recommendation for a 2nd appeal for convicted Pan Am 103 bomber Al-Megrahi. This will be held with the exclusion of Al-Megrahi's own defence team.

"So far the court has not published its decision, but in a letter seen by BBC Scotland, the Foreign Office minister Kim Howells says it has decided to appoint a special defender."

As I stated ealier this year : Quite how the integrity and sincerity of the discussions and any decisions made during this court session on the subject of the withheld document(s), can be guaranteed to the victims families and the public when the intended body of Advocates in place of Megrahi's defence team is determined and vetted by the very ones who are raising the PII while refusing to disclose the document, is unclear.

BBC article here - http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/7622223.stm

What now, Scotland?

Lockerbie Accord Sets out Framework for Future Justice.

'The Firm' website carries this headline regarding Tuesday's meeting on the island of Skye, off the North West coast of Scotland. The meeting included Dr Hans Kochler, the UN appointed special observer to Zeist, and Professor Robert Black who was integral to the formation of the original Lockerbie trial.

http://www.thefirmmagazine.com/news/1055/Lockerbie_accord_sets_out_framework_for_future_justice.html

A unique accord settled on Skye yesterday (Tuesday) has set out a philosphical and practical way forward for Scots law in an effort to restore credibility after the Lockerbie debacle.

Dr Hans Kochler, the UN appointed special observer, and Professor Robert Black promulgated their conclusions at a special conference convened by veteran campaigner Robbie the Pict of the Lockerbie Justice Group collective.

Entitled Quid Nunc, Scotia? (What now, Scotland) the two academics called for a fresh investigation of the Lockerbie event, and pointed out evidence of corruption and bribery that had occurred during and after the trial.

Professor Black also articulated amendements to the criminal law to ensure fairness in future proceedings.

The accord concluded that there were fundamental defects with the implementationand execution of the Zeist trial, and highlighted the need for either a fresh Fatal Accident Inquiry or a full public inquiry.

The full text of the agreement can be read below.

Greshornish House Accord
Isle of Skye, 16 September 2008

Invited Consultants –
Dr. Hans Koechler, President of the International Progress Organisation (IPO), Vienna.
Prof. Robert Black QC, Professor Emeritus of Scots Law, University of Edinburgh.

Convener – Robbie the Pict, Lockerbie Justice Group.

The participants were invited to reply to four questions put by the Convener in the hope of guidance in the pursuit of proper justice for all in relation to the destruction of PanAm Flight 103 over Lockerbie in December 1988.

The questions asked were answered as follows:

QUESTION 1. Did the Foreign and Commonwealth Office arrangements for a trial at Kamp Zeist deliver an independent and impartial tribunal?

A.1. No. We draw attention to five principal defects:

a) It would have enhanced the appearance of independence and impartiality if the Judicial Bench had been composed of Judges from countries other than the United Kingdom with a Scottish Judge in the Chair. This is principally because the case involves the interests of more than one state and the appointment of all the Judges from only one of the concerned states does not meet the required standards of independence and impartiality. The Consultants present today would both have preferred a tribunal wherein a Scottish Judge chaired a panel of Judges from other countries but this was rejected by the relevant UK authorities. It should be kept in mind that there was an ongoing political dispute between the UK and Libya at this time which had led to the severing of diplomatic relations.

b) The presence of American advisers in the well of the Court, later identified to the IPO as FBI agents, having frequent discourse and consultation with the Crown prosecution team contributed to the appearance of outside influence on the conduct of the prosecution. These persons were not identified at any point and their names did not appear on the official brochure which, amongst other things, named the prosecution and defence teams. Concerns were raised in the course of the trial that these persons appeared to be guiding witness responses by facial gestures.

c) We are of the view that if, in an adversarial system, the defence does not properly play its antagonistic role, the interplay of forces is set off-balance. This demands both equality of arms procedurally, and a determined and dedicated wielding of these arms.

We draw attention to the new burden placed upon all Judges under Section 6(1) of the Human Rights Act 1998 (HRA) to ensure that there is indeed an equality of arms in their Court.

d) Whilst we accept that circumstantial evidence alone can be sufficient to convict, we are not satisfied that the Court, in its written judgment, adequately explained its reasons for accepting incriminating inferences from that evidence and rejecting or dismissing evidence that supported non-incriminating inferences.

e) We have good reason to suspect that rewards and benefits of a direct or indirect nature have been paid to prosecution witnesses.

QUESTION 2. What should happen now?

A.2
a) In the event that the Public Interest Immunity (PII) certificate is upheld by the Court and evidence is withheld from the Defence, we consider that this would render the conduct of a fair appeal impossible. We believe that, in actuality and in the public perception, such a denial compromises the principles of a fair hearing, which depends significantly upon equality of arms.
In this context we would like to draw attention to the position adopted by the Foreign and Commonwealth Office on this matter, as contained in a letter written to the IPO on 27 August 2008. It reads:

“Under the Human Rights Act 1998 the Court has a duty to act in compliance with Convention rights in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the right to a fair trial. The UK Government has made clear its commitment to work closely with the Court to ensure that Mr Megrahi receives a fair trial and that sensitive material is handled appropriately.”

b) In the event that the present appeal proceeds, we recommend the following:
i) That the pending decision by the Appeal Court, regarding the scope of the appeal, be delivered with urgency. Preparation by both the appellant and the Crown is impeded whilst the precise parameters of the appeal remain unsettled. It is clearly desirable that any decision defining those parameters should give reasons for the rejection of any grounds submitted by the appellant.
ii) The phrase ‘the trial and any appeal’ in the Agreement between the Governments of the UK and the Netherlands concerning a Scottish Trial in the Netherlands permits the view that this further appeal should also take place in an international framework; however we consider that unlikely. We urge that the relevant Scottish and UK authorities take such steps as are necessary to secure the presence of international observers at any further appeal hearing.

c) Irrespective of the outcome of the current appeal, there should be a re-investigation of the incident by the Scottish authorities. A further Fatal Accident Inquiry would not be inappropriate given the amount of material that has become available since the original FAI took place. When the restricted scope of an FAI is considered perhaps it would be more appropriate to have a wider-ranging public inquiry.

d) Allegations have been made in the Press and elsewhere of incidences of tampering with evidence material to the case. The Lord Advocate should instruct that these allegations be investigated.

QUESTION 3. If Scotland was charged with managing such an international event in the future, what model is recommended?

A3.
a) Although this is a hypothetical question it offers the opportunity to advise the Scottish public of developments since the Lockerbie incident. The UK is a state party to the Rome Statute of the International Criminal Court (ICC). This would mean that such matters could be prosecuted by the International Criminal Court in The Hague.

b) Where, for whatever reason, the ICC cannot be resorted to, the possibility exists of inviting non-Scottish Judges to participate in a Scottish trial. The following are illustrative precedents for such an approach:

i) The Special Court for Sierra Leone, established by agreement between the UN and the Government of Sierra Leone.
ii) The Special Chambers in the Courts of Cambodia.

QUESTION 4. What changes should be considered for the better administration of justice in Scotland?

A4.
1. Whilst Scotland retains an adversarial system as opposed to an inquisitorial system, the existence of a real equality of arms is crucial to the delivery of justice. Following the coming into force of the Human Rights Act 1998 (HRA) the responsibility for ensuring a fair trial, which includes equality of arms, lies with the Court itself. Although this judicial obligation is already enshrined in the law, it could usefully be spelled out in an amendment to the Criminal Procedure (Scotland) Act 1995.

2. It is inappropriate that the Chief Legal Adviser to the Government is also head of all criminal prosecutions. Whilst the Lord Advocate and Solicitor General continue as public prosecutors the principle of separation of powers seems compromised. The potential for a conflict of interest always exists. Resolution of these circumstances would entail an amendment of the provisions contained within the Scotland Act 1998.

3. The Criminal Procedure (Scotland) Act 1995 should be amended to oblige the Crown to disclose all prosecution witness statements. The current system, whereby the Crown’s disclosure obligation is met by simply supplying a list of possible Crown witnesses, encourages the fruitless expenditure of defence time, money and effort.

4. The absence of a particular and dedicated Criminal Appeal Court, especially when, unlike in civil matters, there is no further appeal available to a higher Court, renders the appeal system vulnerable to serious criticism.