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Showing posts sorted by relevance for query "Robbie the Pict". Sort by date Show all posts

Monday 12 November 2007

Robbie the Pict and Hans Koechler

Here is (1) the text of an e-mail sent to Robbie the Pict by Dr Hans Koechler, the UN-appointed observer at the Lockerbie trial and (2) the text of an e-mail sent today by Robbie to, amongst others, the First Minister and the Minister of Justice. The issue is the preservation of the wreckage from Pan Am 103. Items posted on this blog on 02 and 29 October 2007 are relevant.

(1) From: I.P.O.

To: RtP

Sent: Wednesday, November 07, 2007 3:14 PM

Vienna, 7 November 2007

P/RE/20727

Dear Robbie!

I have received your message concerning the remains of the aircraft.

I agree with you that all forensic evidence, including the aircraft remains, has to be stored in a safe place where it can be assured that it will not be tampered with.

From here in Austria I cannot judge which is the best place. I do not know whether the Scottish authorities are capable of safe storage of this kind of sensitive items. So far, the judicial authorities' performance in this case is not very reassuring.

With best regards,

Hans Koechler


(2) Greetings Gentlemen,

This is forwarded for your interest. Leaving aside the obvious requirements of any criminal re-investigation there are two other dimensions to this situation which I respectfully urge you to consider.

If John Parkes and myself are right about an accidental explosion of two diplomatic freight crates of TOW missiles and/or their component parts, the perpetrators will have to find an alternative bomber and if we let that happen we have the blood of innocent civilians in Iran or Syria on our hands. It has the potential to fuel other agendas towards these two countries. Secondly, from a domestic transport perspective, we may have a serious problem regarding daily health and safety. Familiarity breeds both contempt and criminal practice, and if this illegal carriage of munitions samples, or 'returns' or any traffic at all flowing from the UK arms industry continues unchecked we may have another Lockerbie any minute. God forbid it came down over Glasgow. (Good advert for the Games.)

You may ask what has it to do with you, Mr Pict? I would simply answer that in certain circumstances of national interest we may need all hands to the pump. I am an ex-pilot who imediately understood the AIB report, I am en ex-RAF Policeman who has knowledge of what used to be transported on international flights - I watched and them being loaded whilst standing as an armed guard, my 35 years experience negotiating the Crown Office and the Courts has gifted me circumspection, I am not afraid to speak the truth and, as one of the sovereign people of Scotland, I say 'not in our name'.

After a period of not correcting or dealing with a problem, you own it. This will soon be said about reparations concerning the criminal extortion of tolls on the A87, especially while 129 convictions remain upheld and £33m has been taken from road-users - half a £million from Skye Transport hauliers alone!

With best regards,

Robbie.


Saturday 4 October 2008

The Firm's coverage of Skye event

The October issue of the Scottish lawyers’ magazine The Firm has a two-page spread, with photographs, on the meeting organized by the Lockerbie Justice Group at Greshornish House, Skye, on 15 and 16 September 2008. The text reads as follows:

No limits on Skye as legal academics aim for new way ahead

Over two days at a retreat in the north of Skye, a unique and unprecedented international accord was drafted in an effort to provide Scots law with a way out of the Lockerbie judicial quagmire, and provide a better model for future cases. Steven Raeburn was there to hear the outcomes.

A secluded idyll at practically the northwesternmost fringe of the European continent is an incongruous site for an international conference. The ripples that could emanate from a quiet country hotel sited at the end of a rutted road, promulgated by two legal academics at the invitation of Scotland’s most dogged and effective patriot, far from the entrenched attitudes, vested interest and closed minds of the madding crowd of Holyrood and central belt establishment, could ripple out and write a profoundly significant chapter in the history of Scottish justice.

The Greshornish House Accord proposes that if Scotland was charged with managing such an international case in the future, it could be held at the International Criminal Court in the Hague. And that non Scottish judges could participate in a Scottish trial, citing international precedent. It also proposes practical amendments to the Criminal Procedure (Scotland ) Act 1995, the ‘bible’ of criminal law, and to the Scotland Act to amend the ‘inappropriate’ situation where the Chief Legal Adviser to the Government is also head of criminal prosecutions.

“I hope that we can set a hare running from this point, and that this message will eventually get to the powers-that-be, and they will take some cognisance of it,” said Robbie the Pict, who had gathered Professor Robert Black and Dr Hans Kochler, UN appointed observer to the Lockerbie proceedings, to discuss four key questions “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 resultant accord is a four part template providing both a philosophical and a practical way out of the quagmire surrounding the ongoing Lockerbie proceedings which have stained Scots law. Proceedings which presently appear to be hostage to the strategic interests of UK and US foreign policy and Libyan governmental expedience.

The scale and depth of the mess has been extraordinary. The ease with which Scots law was hijacked is troubling. The lack of fuss or even interest from within the legal and political establishment, and the evident assent of Scots law to serve the geopolitical interest gives the impression of collusion, complicity and denial. Court doors have literally been closed as proceedings carry on in secret, to the exclusion even of the defence and the accused. The era of hidden justice is upon us. The proponents of the Greshornish House accord don’t think this is good enough.

“As an observer, I just would like to know exactly what the causes of this incident in the air over Lockerbie really are. I just hope that there will be a new appeal. If evidence is withheld from the defence, there can be no appeal,” Hans Kochler said, announcing the joint conclusions on Skye. “To me it is extremely frustrating that in regard to such an incident, just one person has been presented as the culprit, with no further questions asked and no investigations ever having been made. This is not a credible explanation.

“Why doesn’t Scotland, independent in regard to the administration of criminal justice, undertake the appropriate measures to investigate this matter fully? This is a case that is not closed. This is something that is ongoing, and I will not run away until I am presented with a clear, unambiguous and comprehensive decision of a court.”

“If this is an independent system, theoretically, the prosecutorial authorities of Scotland could still initiate investigations into this incident and into what caused it. I do not think everything is just connected to the question of the personal criminal responsibility of one lone individual.”

The ongoing court proceedings in the case, returned to the High Court on the basis that a miscarriage of justice may have occurred, are presently diverted with procedural issues relating to the disclosure or otherwise of evidential letters, which have been given considerable weight by the court and the Scottish Criminal Cases Review Commission, although sources who are aware of the contents of the documents have told the Firm that their contents are well known and irrelevant. The sleight of hand will result, say both Black and Kochler, in unavoidable prejudice to Megrahi’s case, and his inevitable repatriation.

“This panel basically agrees that if they uphold the PII certificate, no appeal is possible, and Mr Megrahi will be sent home. He would have to be sent home. We cannot offer him a fair hearing of his appeal,” said Robbie the Pict, who brokered the accord and convened the panel. “If the FCO are urging that this is a highly sensitive document, this cannot be taken lightly. So it would prevail over the interests of Scottish justice. If that happens, there is an implicit duty upon the judges to say there is not an equality of arms, therefore they cannot offer Mr Megrahi a fair appeal hearing.”

Professor Robert Black, instrumental in orchestrating the original trial proceedings in Zeist, says there is currently no political will to reinvestigate the circumstances of the event, even if Megrahi is repatriated and proceedings close without a solid conviction as predicted. “I am not convinced that there is such political will. One of the things we have been trying to do is insert some backbone into those politicians who have the power to make it happen,” he said.

Kochler in turn drew comparison with the Shirley McKie embarrassment, which resulted in a lengthy and productive inquiry process that shed some welcome light on the dustier corners of the Scottish judicial and political power structure. Such an outcome is warranted in the Lockerbie scenario he says. “The present case definitely has as much weight as the McKie case for the rule of law, and for democratic structures. Why would the government of Scotland not agree to an independent inquiry? Scotland would also do a great service to the international rule of law. This was an incident of international nature. To know the truth about it is extremely important.”

The nexus between Scots law and UK foreign policy is directly affected by the friction arising from the handling of this case. Kochler believes that this presents an opportunity for Scots law to assert its credibility and ensure the maintenance of its international reputation. “It is a test case to see how independent the Scottish judiciary acts and how determined the authorities of this country are to assert the supremacy of the law over political interests,” he says.

“Scottish justice may still come out very well, if there is a new appeal, which is fair, and conducted with all the material and all the evidence made available to both sides, then there is still a chance. If not, this will just be one of the many cases where politics finally prevailed over law. This is the result of a political and international constellation that Scotland cannot control. But still, the judiciary should try to act independently and not give in to the political pressures.”

Tuesday 23 September 2008

Professor Köchler on PII

Statement by Professor Hans Köchler following his visit to Scotland last week:

'The UN-appointed international observer at the Lockerbie trial in the Netherlands, Dr Hans Koechler, revealed in an interview with the BBC's Reevel Alderson on 17 September that the judges dealing with the new appeal of the only convicted suspect in the Lockerbie case, the Libyan citizen Abdelbasset Ali Mohmed Al Megrahi, have ruled that special counsel should be appointed for the Appellant in regard to the material covered by the Foreign Secretary's Public Interest Immunity (PII) certificate. This was communicated in a letter to a member of the House of Commons, dated 4 September 2008 and signed on behalf of the Minister of State Kim Howells. The respective paragraph at the end of the letter reads as follows:

'"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. To this end the court ruled on 19 August that special counsel should be appointed to assist the court and safeguard Mr Megrahi's interests in relation to this issue. Once appointed, the special counsel will be provided with a confidential summary of the submissions made by the Advocate General at the last hearing. The UK government supports this ruling in the interests of ensuring the trial is fair."

'It is to be noted that the above letter was in reply to a letter the member of the House of Commons had written earlier (13 August 2008) to the Foreign Secretary, stating that he was "deeply concerned if the statement by Dr Koechler in the attached letter is correct and vital 'exculpatory material' is being withheld from Mr Al-Megrahi's defence team." The member of the House of Commons refers to a letter by Dr Koechler, dated 21 July 2008, to the Foreign Secretary. It is further to be noted that Dr Koechler received an almost identical letter of reply from the Foreign Office (dated 27 August)- with the exception of the three sentences marked in bold in the above quotation.

'The UN-appointed international observer has visited Scotland from 11 to 19 September on a fact-finding mission aimed at assessing the reasons for the long delay of the new Lockerbie appeal. (In June 2007, after investigations that lasted several years, the Scottish Criminal Cases Review Commission had referred the convicted Libyan national's case back to the High Court of Justiciary.)

'In the course of his visit, Dr Koechler has participated in consultations held on 15/16 September at Greshornish House on the Isle of Skye. The meeting was convened at the invitation of the Lockerbie Justice Group, headed by Mr Robbie the Pict, and included Prof. Robert Black, the "architect" of the Lockerbie trial in the Netherlands. Under the motto Quid nunc, Scotia? the participants were asked to consider questions in regard to the fairness and impartiality of the Lockerbie proceedings in the Netherlands and eventual new appeal proceedings in Scotland and to reflect on the lessons to be learned for the handling of any such case in the future.

'Dr Koechler further held consultations at the House of the Binns with Mr Tam Dalyell, former member of the House of Commons; with Mr Alex Neil MSP and Mr Ian McKie, father of policewoman Shirley McKie, at the Scottish Parliament; and with members of the Lockerbie Justice Group. On 18 September he delivered a keynote speech on "The Lockerbie Trial and the Rule of Law" at the Law Awards of Scotland 2008, organized by The Firm magazine in association with Registers of Scotland at the Glasgow Hilton Hotel. In a reference to the Public Interest Immunity claimed by the UK government, Dr Koechler said:

'"Whether those in public office like it or not, the Lockerbie trial has become a test case for the criminal justice system of Scotland. At the same time, it has become an exemplary case on a global scale - its handling will demonstrate whether a domestic system of criminal justice can resist the dictates of international power politics or simply becomes dysfunctional as soon as 'supreme state interests' interfere with the imperatives of justice. (...) The fairness of judicial proceedings is undoubtedly a supreme and permanent public interest. If the rule of law is to be upheld, the requirements of the administration of justice may have to take precedence over public interests of a secondary order - such as a state's momentary foreign policy considerations or commercial and trade interests. The internal stability and international legitimacy of a polity in the long term depend on whether it is able to ensure the supremacy of the law over considerations of power and convenience."

'Dr Koechler's address was followed by enthusiastic applause from an audience of over 600 attendants representing Scotland's legal profession and was commented on by the subsequent keynote speaker, Sir Menzies Campbell CBE QC, former Leader of the United Kingdom's Liberal Democrats.

'In an exclusive interview for the German-French TV channel ARTE, conducted in Edinburgh, and in all public meetings and consultations in Scotland Dr Koechler reiterated his call for a full public inquiry into the causes of the mid-air explosion of PanAm flight 103 over the Scottish town of Lockerbie and the handling of the case by the Scottish judiciary and the Scottish as well as the British executive.'

Friday 22 September 2017

Law and Politics in the Lockerbie Case

[This is the heading over a press release issued on this date in 2008 by the International Progress Organization. It reads in part:]

The UN-appointed international observer at the Lockerbie trial in the Netherlands, Dr Hans Koechler, revealed in an interview with the BBC's Reevel Alderson on 17 September  that the judges dealing with the new appeal of the only convicted suspect in the Lockerbie case, the Libyan citizen Abdelbasset Ali Mohmed Al Megrahi, have ruled that special counsel should be appointed for the Appellant in regard to the material covered by the Foreign Secretary's Public Interest Immunity (PII) certificate. This was communicated in a letter to a member of the House of Commons, dated 4 September 2008 and signed on behalf of the Minister of State Kim Howells. The respective paragraph at the end of the letter reads as follows:
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. To this end the court ruled on 19 August that special counsel should be appointed to assist the court and safeguard Mr Megrahi's interests in relation to this issue. Once appointed, the special counsel will be provided with a confidential summary of the submissions made by the Advocate General at the last hearing. The UK government supports this ruling in the interests of ensuring the trial is fair.
It is to be noted that the above letter was in reply to a letter the member of the House of Commons had written earlier (13 August 2008) to the Foreign Secretary, stating that he was "deeply concerned if the statement by Dr Koechler in the attached letter is correct and vital 'exculpatory material' is being withheld from Mr Al-Megrahi's defence team." The member of the House of Commons refers to a letter by Dr Koechler, dated 21 July 2008, to the Foreign Secretary. It is further to be noted that Dr Koechler received an almost identical letter of reply from the Foreign Office (dated 27 August) - with the exception of the three sentences marked in bold in the above quotation.
The UN-appointed international observer has visited Scotland from 11 to 19 September on a fact-finding mission aimed at assessing the reasons for the long delay of the new Lockerbie appeal. (In June 2007, after investigations that lasted several years, the Scottish Criminal Cases Review Commission had referred the convicted Libyan national's case back to the High Court of Justiciary.)
In the course of his visit, Dr Koechler has participated in consultations held on 15/16 September at Greshornish House on the Isle of Skye. The meeting was convened at the invitation of the Lockerbie Justice Group, headed by Robbie the Pict, and included Prof Robert Black, the "architect" of the Lockerbie trial in the Netherlands. Under the motto Quid nunc, Scotia? the participants were asked to consider questions in regard to the fairness and impartiality of the Lockerbie proceedings in the Netherlands and eventual new appeal proceedings in Scotland and to reflect on the lessons to be learned for the handling of any such case in the future.
Dr Koechler further held consultations with Mr Tam Dalyell, former member of the British Parliament and Father of the House of Commons; with Mr Alex Neil MSP and Mr Ian McKie, father of policewoman Shirley McKie, at the Scottish Parliament; and with members of the Lockerbie Justice Group on the Isle of Skye, in Edinburgh and Glasgow.  On 18 September he delivered a keynote speech on "The Lockerbie Trial and the Rule of Law" at the Law Awards of Scotland 2008, organized by The Firm magazine in association with Registers of Scotland at the Glasgow Hilton Hotel. In a reference to the Public Interest Immunity claimed by the UK government, Dr Koechler said:
Whether those in public office like it or not, the Lockerbie trial has become a test case for the criminal justice system of Scotland. At the same time, it has become an exemplary case on a global scale - its handling will demonstrate whether a domestic system of criminal justice can resist the dictates of international power politics or simply becomes dysfunctional as soon as "supreme state interests" interfere with the imperatives of justice. (...) The fairness of judicial proceedings is undoubtedly a supreme and permanent public interest. If the rule of law is to be upheld, the requirements of the administration of justice may have to take precedence over public interests of a secondary order - such as a state's momentary foreign policy considerations or commercial and trade interests. The internal stability and international legitimacy of a polity in the long term depend on whether it is able to ensure the supremacy of the law over considerations of power and convenience.
Dr Koechler's address was followed by enthusiastic applause from an audience of over 600 attendants representing Scotland's legal profession and was commented on by the subsequent keynote speaker, Sir Menzies Campbell CBE QC, former Leader of the United Kingdom's Liberal Democrats.
In an exclusive interview for the German-French TV channel ARTE, conducted in Edinburgh, and in all public meetings and consultations in Scotland Dr Koechler reiterated his call for a full public inquiry into the causes of the mid-air explosion of PanAm flight 103 over the Scottish town of Lockerbie and the handling of the case by the Scottish judiciary and the Scottish as well as the British executive.

Sunday 15 June 2008

Lockerbie bomber hearing 'flawed'

The Sunday Times has picked up the story from The Firm which was mentioned on this blog on 13 June. The report, by Mark Macaskill, reads as follows:

'The UN’s observer in the trial that convicted a Libyan of the atrocity criticises the process of his appeal

The UN observer at the Lockerbie trial, Hans Köchler, has said that the Libyan convicted of the bombing will not get a fair hearing in Scotland.

Köchler, who advises the European Commission on democracy and human rights, has condemned government interference in the appeal of Abdelbaset Ali Mohmed al-Megrahi and said the hearing should be held in a neutral country.

His intervention follows an attempt by the British government to block the release of secret papers that could help clear the former Libyan intelligence agent convicted of the 1988 bombing, which claimed 270 lives.

Köchler said Megrahi’s case was handled “more like an intelligence operation than a genuine undertaking of criminal justice” and criticised MSPs for failing to hold inquiries into the downing of Pan Am 103 and its judicial aftermath. “It is almost trivial to say that a fair trial requires the availability of evidence to the prosecution and defence. Only in a totalitarian system would the executive power interfere in court proceedings and order the withholding of evidence.”

The Advocate General, on behalf of British ministers, had objected to disclosure of the documents to Megrahi’s legal team, lodging a public interest immunity plea.

Last month senior judges ordered that the papers should be released to the Court of Criminal Appeal in Edinburgh, where a panel of three judges will decide in camera whether they should be disclosed.

The documents, which are believed to hold information about the electronic timer that detonated the bomb, were not disclosed to the defence during al-Megrahi’s trial at Camp Zeist in the Netherlands. Megrahi lost an appeal in 2002, but the Scottish Criminal Cases Review Commission concluded that he might have been the victim of a miscarriage of justice and referred his case back to the court last year. One of the grounds for referral is believed to be the prosecution’s failure to disclose the secret document to Megrahi’s lawyers.

Köchler said the decision to hear the appeal in Scotland breached a concordat between the UK, the US and the Netherlands. “The fact that the new appeal proceedings take place in Scotland is not in conformity with the original intergovernmental agreement on the Lockerbie trial.” The proceedings totally lacked “transparency”, he said.

Last week, Robert Black, the Edinburgh law professor who helped to arrange Megrahi’s original trial in the Netherlands said the intergovernmental agreement no longer applied. It “existed for the original trial and the appeal. This is now the second appeal.” The agreement was spent, he said.

“Scotland made a mess of the trial and the appeal, and to an outside observer, that might lend justification to Köchler’s view. But I believe that this time it will be done properly and Megrahi will be released.”

Last year, Köchler said Scotland had the reputation of a “banana republic” because of its handling of the case.'

Scotland on Sunday runs a story along the same lines. It contains the following quote from doughty Lockerbie campaigner, Tam Dalyell:

"Hans Köchler is a good man and he is absolutely right with his criticisms. The behaviour of the Crown in this case has been disgusting and a disgrace to Scotland. I personally feel very responsible because I was one of those, along with others, who helped persuade the Libyans to hand over one of their nationals for trial."

Scotland on Sunday states that Professor Köchler's views were expressed in a letter written to The Firm. The letter was in fact written to Robbie the Pict who, with Köchler's permission, passed it to the magazine.

Tuesday 16 September 2008

Greshornish House Accord

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?

ANSWER 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?

ANSWER 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?

ANSWER 3.
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?

ANSWER 4.
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.

16 September 2008

Thursday 3 July 2008

Lockerbie Appeal - To Crown it All

I am grateful to Robbie the Pict for drawing my attention to the following article in Private Eye of 27 June 2008.

'Unless the Scottish judiciary resists blatant meddling from Westminster, the forthcoming appeal of Ali Mohmed al-Megrahi, jailed for life for the Lockerbie bombing, is in danger of descending into fiasco.

'Not only is the Foreign Office trying to keep secret intelligence documents that are crucial to the Libyan's defence by claiming public interest immunity (PII) on them (see Eye 1201), but the Crown Office is now seeking to limit Megrahi's appeal too.

'Crown lawyers want the appeal restricted to the six grounds cited last year by the Scottish Criminal Cases Review Commission (SCCRC). Because one of those grounds relates to documents which the UK government wants kept secret, the United Nations special observer, Dr Hans Kochler, has already said the appeal looks more like an "intelligence operation" than a fair hearing.

'To try now to limit the scope of the appeal will underscore Kochler's belief and confirm the view of many, including some of the victims' families, that the government does not want the truth to emerge about how and why Pan Am flight 103 was blasted from the sky nearly 20 years ago, killing 270 people.

'The secret documents relate indirectly to the timing device alleged to have detonated the bomb and said to provide the crucial link to both Libya and Megrahi. Recent leaks to two Scottish newspapers suggest the documents are German in origin and cast doubt on the Libyan connection. Scotland on Sunday quoted a source who had seen the material saying it held "considerable detail" and "appeared to confirm that the method of attack was typical of a Palestinian terror cell in Germany".

'A Syrian-backed Palestinian terrorist cell operating out of Frankfurt was of course broken by German police two months before Lockerbie. Altitude sensitive bombs packed in cassette recorders were found in their flat. It was calculated that they would blow an aircraft up around 40 minutes after take off- spookily similar to the fate of Pan Am 103 after it left Heathrow.

'The Palestinians were the main suspects for the Pan Am bombing for well over a year - until the investigation suddenly switched to Libya and Megrahi with the purported discovery of a tiny fragment of circuit board said to come from a Swiss-made MST 13 timer.

'How the fragment was found and later identified by UK scientists and US investigators has always been highly contentious. Thus any evidence about the timer is central to Megrahi's defence. As well as seeking disclosure of the secret material, it is understood his lawyers want to introduce the results of independent forensic tests casting farther doubt on the evidence given about the timer - unless the Crown Office succeeds in limiting the scope of the appeal.'

Sunday 4 October 2015

Colin Boyd resigns as Lord Advocate

[On this date in 2006, Lord Boyd of Duncansby QC (Colin Boyd) resigned as Lord Advocate, an office he had held since 24 February 2000, some seven weeks before the Lockerbie trial started at Camp Zeist. An article by Steven Raeburn headed A private life was published some time later on the website of Scottish lawyers’ magazine The Firm. It reads as follows:]

There are many polarising figures in the Scottish legal profession. Take Donald Findlay for instance – many adore him while others dislike everything he stands for. Former Lord Advocate Colin Boyd is another such figure. some consider his time as Lord Advocate as one of great leadership while others think quite the opposite. Steven Raeburn speaks to Boyd to talk about his time in charge and his return to private practice.
You could almost be forgiven for believing Colin Boyd had retired. Or emigrated. Or died. Such is the contrast in his public profile since stepping down as Lord Advocate in 2006, after a six year tenure that saw him dodging bullets on an almost daily basis, as the twin firestorms of the Lockerbie debacle and the Shirley McKie fingerprints fiasco unfolded in the glare of the public arena. His stint in the Lord Advocate’s role had been the longest in modern times, and instead of stepping down and onto the bench, suitably bewigged as a High Court judge – the traditional destination of retiring senior law officers – Boyd instead went into private practice as a solicitor with Scotland’s largest firm, Dundas and Wilson.
Such was the character of Boyd’s time as Lord Advocate that both the timing of his departure and his destination were themselves subject to criticism and accusation. Nowadays, away from the public gaze he can be found shepherding conferences on his preferred area of practice, public law, or quietly ensconced in his Edinburgh office. As the first former Lord Advocate to make this transition – precisely reversing the path of his successor into the role – how is he adjusting to ordinary life behind a desk?
“There are two shifts,” he says. “One is from being a law officer, Lord Advocate, and then from being an advocate to being a solicitor. Occasionally I think “What is happening”, and I used to enjoy some of the perks that went with the job. But I don’t miss being Lord Advocate.”
Unless you are a masochist with a particular love of front page criticism, it is easy to see his point. Six years in the role had given him ownership and responsibility for some of the most significant state legal decisions that any incumbent is likely to see, with the ripple effect still likely to be felt for years to come.
“I had done long enough as Lord Advocate. I would have gone earlier had it not been for certain events, and it was time for me to move on and change.”
“Certain events” is an interesting euphemism for the cumulative stains on Scottish justice left by events such as the outcome of the Surjit Singh Chokhar trial – following which two independent reports identified failings in the way the case was handled by the police and the Crown Office and Procurator Fiscal Service; the Lockerbie trial, returned to the High Court after the Scottish Criminal Cases Review Commission adjudged that a miscarriage of justice may have taken place; and the Shirley McKie crisis, which questioned not only the efficacy of the Scottish Criminal Records Office, but the integrity of the police and the entire Crown Office administration of justice, that seemed unable to admit the possibility of a mistake, whilst failing to bring in a solid conviction in the murder of Marion Ross. The disturbing links between the evidential processes in both cases raised deeper, more disturbing questions about accountability and decision making in the heart of the Scottish Justice system. Boyd was not in office at the genesis of these events, but was responsible for many of the key decisions and most of the execution as they unfolded.
Less noticed during his six years were the introduction of the Sexual Offences (Procedure and Evidence) Act 2002, which aimed to minimise the distress caused to victims of rape testifying against their attackers, and the Bonomy reforms to the High Court, which have largely been welcomed as their effects have filtered through the judicial process. The reforms to the administration of justice appear to be the aspects of his tenure he is most keen to reflect upon.
“When I took over in 2000, I was faced almost immediately with the Lockerbie trial, and that really consumed my first year or so as Lord Advocate,” he says.
“Thereafter, there was a clear need to set about restructuring and modernising the Crown Office and Procurator Fiscal Service. That took a period of time. Once we embarked, we saw it is an on going process. There will never be a time when you can sit back and say it is fixed.”
Notwithstanding the scale of progress achieved in this area, Boyd nevertheless raised a few eyebrows by choosing to enter private practice, rather than the traditional route to the bench at the expiry of his term. The move was perceived by some as an attempt to find a safe harbour while the twin storms of Lockerbie and McKie blew. Boyd acknowledges that the level of press interest was a prominent factor at this time.
“I was the longest serving Lord Advocate for over 100 years. The workload for the Lord Advocate had gone up markedly, and the degree of scrutiny to which I was subject had increased very considerably.”
“I didn’t want to become a judge at this stage, and I didn’t want to go back to the bar and start a practice again. It seemed to me to be a good move to revert to being what I started out in professional life, a solicitor.”
Boyd’s careful modifier suggests that a place on the bench may be an ambition of his that has been merely postponed, rather than cancelled, and it seems likely that a place amongst the elite of the High Court remains his most likely final berth.
“I have never ruled out being a judge as an option. For a variety of reasons – some of them personal and some of them to do with my public profile when I went – I didn’t think it was the right thing for me to do at this stage. [RB: Boyd’s appointment as a judge of the Court of Session and High Court of Justiciary was announced on 1 June 2012.]
“The days when a Lord Advocate could appoint himself as a judge have gone, so I would have had to apply to the Judicial Appointments Board. One of the inhibiting features of that is that, with the best will in the word, it might have got out that I had made an application whilst Lord Advocate, and that might have undermined my position as Lord Advocate. I didn’t think that that would be good. I have no plans to make an application at the moment, and I am fully committed to Dundas and Wilson. I would never rule it out as a possible option for the future.”
Whatever his future plans, it is likely that Colin Boyd will never escape the three pronged shadows of Lockerbie, McKie and Chokhar which are likely to form his legacy, despite his body of achievement and efforts at reform. His successor, Elish Angiolini has firmly established herself as a Lord Advocate of considerable reach and power, although it is too early in her tenure to draw conclusions on her overall impact. In retrospect, Boyd remains positive about his time in the role.
“I do take some pride in the achievements of the restructuring and reforms that we have made, and I came to a point that I thought it was time now that somebody else took up the challenge.”
As others see him
Colin’s wealth of experience and his reputation for innovation were of huge appeal to Dundas & Wilson. His background in planning law and expertise in constitutional law have proved to be an excellent fit with what we were already doing with the public law initiative, and allowed us to pool a wide range of knowledge into a specialist public law practice, capable of tackling very complex, cross-disciplinary infrastructure projects. To move from the Bar into private practice was seen by some as an unexpected change of direction, but it makes perfect sense for D&W and our clients, as well as providing a new challenge for Colin’s considerable talents. Mike McAuley, Chairman of Dundas & Wilson
I always liked him, though. He seemed consistently courteous and reasonable. He was so softly spoken and self-effacing that when he was Solicitor General and we met at some Law Society do, I thought he said he was with the Solicitors Journal. I said, "Solicitors Journal?" and he said, "Solicitor-General" apologetically, as though it was his fault I hadn’t heard him, and not my fault for failing to recognise a senior law officer. This form of modesty is rare at the bar and endearing. Anonymous
Colin Boyd tried to balance what was known to his prosecution team of the famous ‘CIA telegrams’ in the court at Zeist, in the knowledge that the ‘star’ prosecution witness (Giaca) was also a worthless CIA quizzling. His struggles to meet his clear duty to truth and justice and fair dealing with the court and the defence, made a ‘rabbit in the headlights’ look cool and sagacious. Meantime his predecessor in office had made the wise choice of lolloping off to the safety of a secure burrow in the nick of time. Dr Jim Swire
Colin Boyd is a lawyer of the greatest intellect, ability and integrity. He is a man of principle. Despite his understated and modest demeanour he really is a very radical lawyer, a moderniser with a challenging vision for the future of the legal system and for the profession in Scotland. Elish Angiolini, Lord Advocate
As far as Scotland is concerned, he might as well have had a Union Jack shell suit and bowler hat. When it came to the Skye Bridge, he maintained a false line by saying the tolling licence had been examined and found to be in order. It wasn’t found to be in order. He took us absolutely nowhere and didn’t penetrate my consciousness in any positive way. Robbie The Pict
Colin Boyd took a thoughtful approach to every part of his work, always seeking to uphold the fundamental principles of Scottish Justice while being prepared to promote radical changes to improve the day to day operation of the system. Colin was not one for self promotion, and his quiet manner sometimes hid a keen sense of humour. I am glad that I had the opportunity to work with him. Cathy Jamieson, Former Justice Minister
I believe that history will view Colin Boyd’s reign as Lord Advocate as a shameful period where the independence of the Lord Advocate was sacrificed to the will of his political masters.
Two cases dominated his tenure – the Lockerbie Bombing and the Shirley McKie case. In both cases he stands accused of weakness and vacillation in the face of political pressure and a complete failure to act as, ‘the watchdog for justice’ – the role assigned to him by Lord McCluskey.
His dramatic overnight resignation in October 2006 has been seen by some as the captain jumping ship to save his skin. I hope that this accusation will be thoroughly tested during the planned judicial enquiry into my daughter’s case and in any future enquiry into the Lockerbie disaster. Iain A J McKie

Friday 27 January 2017

Lord Advocate should not be head of prosecution system

[I am grateful to Robbie the Pict for drawing my attention to the following section in the Wikipedia article Lord Advocate:]

Calls for reform
In the Greshornish House Accord of 16 September 2008, Professors Hans Köchler and Robert Black said—
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.
The judges of Scotland's highest court came to share this view. In a submission to the commission set up to consider how the devolution settlement between Scotland and the United Kingdom could be improved, the judges recommended that the Lord Advocate should cease to be the head of the public prosecution system and should act only as the Scottish Government's chief legal adviser. They noted various ways in which the Lord Advocate's roles had caused problems for the judicial system, including the ability "to challenge... virtually any act of a prosecutor has led to a plethora of disputed issues, with consequential delays to the holding of trials and to the hearing and completion of appeals against conviction."
The judges proposed three alternative solutions: stripping the Lord Advocate of responsibility for prosecutions, exempting the Lord Advocate from compliance with the European Convention on Human Rights, or changing the law on criminal appeals. While not specifically favouring any of the three, they noted that the third proposal was radical enough to "generate considerable controversy".[5]
[5] Judiciary in the Court of Session (Just over half way down the list headed "Miscellaneous Submissions")

Sunday 6 July 2014

Plus ça change, plus c'est la même chose

[Six years ago today, I posted on this blog an item headed Scottish newspapers accused of shirking investigative duties. It reads as follows:]

Today's issue of the Sunday Herald contains an article about a letter written by Professor Hans Köchler complaining about the supine attitude of the Scottish press over the Lockerbie miscarriage of justice. The article reads in part:

'When readers are asked what they want more of in newspapers the answer is often great, jaw-dropping scoops. Yet investigative reporting - the discipline behind many such stories - is increasingly seen by many newspaper executives as too expensive to bother with.

'This is certainly the view of Professor Hans Kochler [sic], the former UN monitor of the Lockerbie trial, who has attacked the Scottish media for its coverage of Abdelbaset Ali Mohmed al-Megrahi's continuing appeals against his conviction.

'Kochler believes Scottish journalists are becoming unwilling to question the establishment version of events and work under editors and executives who refuse to finance proper reporting. He says he has a list of publications and journalists he believes have failed to do their jobs properly, which he may seek to publish at a later date.

'Says Kochler: "As far as Lockerbie is concerned I can't understand why more isn't being done by the European country that was most concerned with it. There is a lot at stake: the rule of law, security, the role of international terrorism. Why isn't somebody trying to find out why the authorities are now trying to withhold evidence and delaying everything?"

'In an earlier letter to veteran campaigner Robbie the Pict nee [sic] Brian Robertson, in which Kochler raised the issue of a potential media blackout, he simply wrote: "Where are Scotland's investigative journalists?"

'Kochler claims that editors reduced coverage under establishment pressure. Some journalists closely related to the story argue that the real reason why Lockerbie is off the agenda is because people are tired of it, but Kochler claims it is a symptom of a wider problem that cuts across the profession.'

The comments from members of the public which follow the article are well worth reading and are extremely well-informed.

[With a shamefully few honourable exceptions, the same can be said of the Scottish press today. The original article now appears here on the newspaper's website, but the readers' comments are no longer available.]

Wednesday 6 July 2016

Where are Scotland's investigative journalists?

[What follows is excerpted from an article headlined Scottish newspapers accused of shirking investigative duties that was published in the Sunday Herald on this date in 2008:]

When readers are asked what they want more of in newspapers the answer is often great, jaw-dropping scoops. Yet investigative reporting - the discipline behind many such stories - is increasingly seen by many newspaper executives as too expensive to bother with.
This is certainly the view of Professor Hans Köchler, the former UN monitor of the Lockerbie trial, who has attacked the Scottish media for its coverage of Abdelbaset Ali Mohmed al-Megrahi's continuing appeals against his conviction.
Köchler believes Scottish journalists are becoming unwilling to question the establishment version of events and work under editors and executives who refuse to finance proper reporting. He says he has a list of publications and journalists he believes have failed to do their jobs properly, which he may seek to publish at a later date.
Says Köchler: "As far as Lockerbie is concerned I can't understand why more isn't being done by the European country that was most concerned with it. There is a lot at stake: the rule of law, security, the role of international terrorism. Why isn't somebody trying to find out why the authorities are now trying to withhold evidence and delaying everything?"
In an earlier letter to veteran campaigner Robbie the Pict (...), in which Köchler raised the issue of a potential media blackout, he simply wrote: "Where are Scotland's investigative journalists?"
Köchler claims that editors reduced coverage under establishment pressure. Some journalists closely related to the story argue that the real reason why Lockerbie is off the agenda is because people are tired of it, but Köchler claims it is a symptom of a wider problem that cuts across the profession. (...)
In Scotland there are no dedicated investigative teams nowadays, although most papers, especially the Sundays, will allow reporters to go off-diary if they can convince their editors they are onto something interesting. This has resulted in some notable stories including, according to O'Neill, the "forensic" work done by Sunday Herald Scottish political editor Paul Hutcheon when he broke the undeclared donations story that eventually led to Wendy Alexander's resignation. (...)
BBC lifer Marcus Ryder was appointed head of BBC Scotland's investigative unit in September last year. He has a 17-strong investigative team to work with at Pacific Quay, producing radio and television, including an increasing number of episodes of Panorama.
Ryder is adamant that investigative work is crucial to all journalism, across all Scottish media types. He says the key to success is the people: "It's all to do with talent. If you invest in journalists then you get good stories."
But Harry Reid, the former Herald editor and author of Deadline: A History Of The Scottish Press, warns against too much hype. He says the history of investigative journalism is filled with teams who failed to come up with enough scoops to justify their existence and succeeded only in annoying colleagues by being a "newspaper within a newspaper".
"When I was at the Sunday Standard the defunct liberal broadsheet we had an investigative team made up of Roddy Forsyth, George Hulme and David Scott. All great journalists but, for some reason or another, they did not produce one outstanding story," he says.
While this may be fair comment, few would argue that Scottish journalism is ill-equipped to dig out the juiciest stories in the country.