Showing posts sorted by date for query "public interest immunity" miliband. Sort by relevance Show all posts
Showing posts sorted by date for query "public interest immunity" miliband. Sort by relevance Show all posts

Friday 27 May 2016

Lockerbie documents security plea

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

A plea has been made to Lockerbie bombing appeal judges to hold a hearing to discuss a confidential document behind closed doors.

The Advocate General has suggested a security-vetted advocate could represent Abdelbasset Ali al-Megrahi in place of his usual legal team.

The UK Government claims releasing the document would harm national security.

However, Al Megrahi's lawyers have said it could assist his appeal against his conviction for the 1988 atrocity.

The Advocate General - who represents the UK Government - has lodged a public interest immunity plea to keep the document secret.

A three-day procedural hearing at the Appeal Court in Edinburgh is now meeting to decide how to address the issue.

The court previously heard Foreign Secretary David Miliband had signed the public interest immunity certificate.

Judges were told he believes releasing the secret document would cause "real harm" to the national interest.

Advocate General Lord Davidson QC told the court there should be a public interest immunity hearing, and he suggested judges should have access to the document in advance of that hearing.

He said a special representative, if appointed, would be able to represent Al Megrahi's interests.

The Libyan's defence team have not yet given their views in the hearing but Lord Davidson said it appeared that they contest the use of a special representative in this case.

Al Megrahi was not present at the hearing in Edinburgh.

[RB: This is the document referred to in Kenny MacAskill’s book and in respect of which it has been suggested that Mr MacAskill may have contravened the Official Secrets Act.]

Monday 23 May 2016

The true story of Lockerbie remains untold

[What follows is excerpted from an article by Alan Taylor published in today’s edition of The National:]

Megrahi served little more than eight years before he was sent back to Libya diagnosed with terminal cancer. The person solely responsible for a decision that angered and bemused many people – not least the majority of the victims’ families – was Kenny MacAskill, Scotland’s then Justice Secretary. This book is his attempt to explain how he came to that decision, and to justify it. It makes for painful, disturbing and difficult reading. For if, as MacAskill still appears to believe is the case, Megrahi was instrumental in the Lockerbie bombing, and the verdict was safe, then the rationale for treating him with a compassion alien to his actions is hard to swallow. (...)

All of which, of course, presumes that Megrahi was culpable. Much of the first half of MacAskill’s book is devoted to a reprise of events that will yield little new to those familiar with the Lockerbie saga. Drawing on a limited number of sources, mainly the Scottish Government’s in-house website, and airily dismissing the work of authors such as John Ashton, who was a member of the legal team representing Megrahi, the former Justice Secretary would have us believe that his faith in the Scottish judiciary is unshaken. “I accept the conviction and sentence imposed,” he said in the course of announcing his decision to release Megrahi.
Elsewhere, however, he acknowledges that had the crucial evidence of Tony Gauci –the Maltese shopkeeper who said he sold Megrahi the clothes that were found among the debris from the Pan Am plane – been dismissed from the prosecution case it “would have resulted in an acquittal”.
This, then, is where one finds MacAskill’s argument unpersuasive. There is no doubt that Gauci – described by Lord Fraser of Carmyllie, a former Lord Advocate, as “not quite the full shilling” and “an apple short of a picnic” – was a poor and unreliable witness. For instance, when first asked to detail what Megrahi looked like he described someone who was quite different from the police’s chief suspect. He also had trouble fixing on a date on which Megrahi had visited his shop. Apparently, Megrahi paid for his purchases in cash which Gauci said cost £76.50 which, had there been a receipt, would have saved a lot of head-scratching. Ultimately, he identified Megrahi after he was shown photographs of him by the police. Was he influenced by the fact that he’d previously seen pictures of him in a magazine? Or did the promise of a $2m reward help jog his memory? The depressing fact is that after 28 years, the true story of Lockerbie remains untold.
[Today’s edition of The Herald runs a report that reads in part:]
In Mr MacAskill's book, The Lockerbie Bombing: The Search for Justice, which is due to be released on Thursday, he reveals details of a classified document which implicates the terror group the Popular Front for the Liberation of Palestine-General Command (PFLP-GC) in the Lockerbie bombing carried out on December 21, 1988.
The document was the subject of a legal wrangle during Lockerbie bomber Abdelbaset al-Megrahi second appeal against conviction.
The Scottish Criminal Cases Review Commission (SCCRC) referred the case to the High Court on the basis that there may have been a miscarriage of justice.
That conclusion was reached after the SCCRC team that investigated Megrahi’s conviction discovered the existence of the document during their four-year probe which concluded in 2007.
Their 800-page report explains that their investigative team was allowed to access the document in Dumfries police station but they were prevented from removing the notes they made on it and the document itself.
The SCCRC was only able to access the document after signing up to a special agreement not to divulge the contents and was told by the Crown that “a conclusion was reached that the documents did not require to be disclosed in terms of the Crown’s obligations”.
When Megrahi’s defence team pushed for the recovery of the information the Lord Advocate took the view that it would be appropriate to disclose the document.
However, the Advocate General, representing the UK Government, produced a public interest immunity (PII) certificate signed by then Foreign Secretary David Miliband, which blocked the disclosure on the grounds of national security.
A spokeswoman for the FCO has confirmed that “the [PII] certificate is still active” and “if the material protected by the certificate were disclosed, it might constitute a breach of the Official Secrets Act”.
Willie Rennie [leader of the Liberal Democrats in the Scottish Parliament] said: “Kenny MacAskill should be investigated by the authorities.
“His cavalier approach to justice has left many casualties in its wake. He should not be profiting from any breach of the Official Secrets Act.”
Scottish Conservative shadow cabinet secretary for justice, Douglas Ross, added: “Questions need answered as to whether he has broken the Official Secrets Act.”
A spokesman for the Foreign Office declined to offer further comment yesterday but it is understood officials are seeking legal advice.
Victoria Gilder, publicity director at Biteback, the publisher of Mr MacAskill’s book said the former justice minister “can’t comment”.

Sunday 22 May 2016

MacAskill may have breached Official Secrets Act over Lockerbie

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

Former justice minister Kenny MacAskill has revealed details of highly classified secret document which casts serious doubt on the safety of the conviction of Lockerbie bomber Abdelbaset al-Megrahi.
However, the Foreign and Commonwealth Office (FCO) has said that the revelation, which will appear in MacAskill's new book about the downing of Pan Am flight 103, 'might' constitute a breach of the Official Secrets Act.
It is understood the FCO only became aware that top secret details were disclosed in MacAskill’s book when the Sunday Herald contacted the UK government about the revelations. Officials are now believed to be seeking legal advice.
The person who discloses information is guilty of an offence if they do so “without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure”.
In his book, The Lockerbie Bombing: The Search for Justice, which is due to be released on Thursday, MacAskill reveals details of a secret document which implicates the terror group the Popular Front for the Liberation of Palestine-General Command (PFLP-GC) in the Lockerbie bombing carried out on December 21 1988.
The PFLP-GC were the original suspects in the investigation into the biggest terrorist atrocity ever to have been committed in mainland Britain, which claimed the lives of 270 people, including 11 Lockerbie residents.
However, by 1991 police and prosecutors were entirely focused on Libya and in 2001 Megrahi – who was a former Libyan intelligence officer - was convicted of the bombing and sentenced to life in prison. (...)
The significance of the document which implicates the PFLP-GC is played down by MacAskill in his book but it does suggest others may have been involved in the bombing.
The details of the document are covered by a strict Whitehall gagging order. The document in question was the subject of a legal wrangle during Megrahi’s second appeal against conviction.
The Scottish Criminal Cases Review Commission (SCCRC) referred the case to the High Court on the basis that there may have been a miscarriage of justice.
That conclusion was reached after the SCCRC team that investigated Megrahi's conviction discovered the existence of the document during their four-year probe which concluded in 2007.
Their 800-page report explains that their investigative team were allowed to access the document in Dumfries police station but they were prevented from removing the notes they made on it and the document itself.
The SCCRC was only able to access the document after signing up to a special agreement not to divulge the contents and was told by the Crown that “a conclusion was reached that the documents did not require to be disclosed in terms of the Crown's obligations”.
When Megrahi’s defence team pushed for the recovery of the information the Lord Advocate took the view that it would be appropriate to disclose the document.
However, the Advocate General, representing the UK government, produced a public interest immunity (PII) certificate signed by then Foreign Secretary David Miliband, which blocked the disclosure on the grounds of national security.
A spokeswoman for the FCO confirmed that “the [PII] certificate is still active” and “if the material protected by the certificate were disclosed, it might constitute a breach of the Official Secrets Act.”
She added: “It would be for the publisher of the book to seek their own legal advice about any legal risks they are running.”
A Scottish Government spokeswoman said: “This is a matter for the publisher to advise upon.”
In 2012 the UK Government went to great lengths to prevent our sister paper The Herald revealing details of the document.
It threatened legal action to stop publication and asked the paper to sign up to a court-approved gagging order.
At that time only the Crown, UK Government and SCCRC team knew the contents of the closely guarded document.
The Herald did publish some details which implicated the PFLP-GC, and revealed that the document originated in Jordan.
MacAskill, however, has gone much further, naming key individuals who were party to the contents of the document, and the potential security ramifications of its release into the public domain.
The Sunday Herald has chosen - after consultation with our lawyers - not to publish the full details of the document despite knowing its contents.
Co-founder of campaigning organisation Lockerbie Truth, Dr Jim Swire, 80, whose daughter Flora was killed in the bombing, said the revelations confirmed his suspicions about the potential involvement of the PFLP-GC.
He said: “It’s exactly what the relatives of the victims have thought for many years. I hope that the book is published without interference. It may lead us to find ways of breaking through the refusal to look again at the evidence used to convict Megrahi.
“This sort of thing - pointing to official knowledge of the real perpetrators - could be absolutely crucial.”
A Crown Office spokesman said: “The Crown has had no involvement in the publication of the former Cabinet Secretary’s book and cannot therefore comment on its content ahead of publication.
“The suggestion that the PFLP-GC was responsible for the Lockerbie bombing was fully considered by the trial court following the incrimination of this terrorist group by Megrahi during his trial and does nothing to undermine the Crown's case that Megrahi acted with others in the bombing of flight Pan Am 103. (...)”
When asked about the possible breach of the PII certificate, Victoria Gilder, Publicity Director at Biteback, the publisher of MacAskill’s book, said: “Sorry, I can’t comment on that because I don’t know anything about it.
“The book is embargoed until next week…you’re not supposed to run anything. It’s embargoed until Monday.”
Last night a Foreign Office spokesman confirmed that the government department has not seen a copy of the book, but added: “We take the protection of material covered by Public Interest Immunity certificates extremely seriously.”

Tuesday 29 March 2016

Arab Ministerial Council demands release of documents in the Libyan citizen case

[This is the headline over an item posted on the Libyan Mathaba news agency website on this date in 2008. It reads in part:]

The Council of Arab Foreign Ministers has demanded that all documents requested by the defence team in the trial of the Libyan political hostage Abd al Basset al Megrahi to be released (...)

The failure to release the documents will lead to the miscarriage of justice and an impediment to his vindication, the Council said in a meeting in Damascus today.

The Council entrusted the Arab League Secretary General Amr Mussa with the follow up of this decision and to report back to the next Arab summit.

It considered the Libyan citizen Abd al Basset al Megrahi a hostage by all international norms and laws.

The Council endorsed a decision to tackle the damage resulting from the Lockerbie case.

It reconfirmed the legitimate right of Libya to reparations for the human and material losses incurred by the unjust sanctions that had been imposed on it.

[The shocking story of the Public Interest Immunity certificate signed by the Foreign Secretary David Miliband can be followed here.]

Tuesday 8 March 2016

Megrahi defence team loses bid to access secret document

[This is the headline over an article by Lucy Adams that appeared in The Herald on this date in 2008. It reads as follows:]

The defence team for the Libyan jailed for the Lockerbie bombing yesterday suffered a set-back in its attempts to get access to a top-secret document.
The document, which originated in an unknown foreign country, is thought to contain vital information about the timer which detonated the bomb that killed 270 people in 1988.
At the previous hearing, the UK Government said the document could not be disclosed for reasons of national security, leading the defence team to accuse it of "interference" in the appeal.
Margaret Scott QC, senior counsel for Abdelbaset Ali Mohmed al Megrahi, the Libyan currently serving 27 years in Greenock prison for the bombing, objected to the Advocate General for Scotland - the law officer who represents the UK Government in Scottish affairs - playing a part in the debate.
She accused the government of meddling - an allegation hotly disputed by Lord Davidson, the Advocate General, and by Elish Angiolini QC, the Lord Advocate and head of prosecutions in Scotland.
However, yesterday the appeal judges ruled against her. Their decision opens the way for several days of future debate about whether letting lawyers see the document would have any security implications.
The Libyan's defence team say it needs to see the document in order for Megrahi to have a fair appeal.
Earlier this year, the Court of Criminal Appeal in Edinburgh was told that Ms Angiolini would be prepared to disclose the document but that has also been disputed.
The document itself was uncovered during the three-year investigation of the Scottish Criminal Cases Review Commission which resulted in the case being referred back to the courts for a new appeal last summer.
The commission concluded the failure during the original trial to disclose this document, which is thought to contain information about the electronic timer used to detonate the bomb, could constitute a miscarriage of justice.
Although the Crown allowed the commission to see the material they have refused to disclose it to the defence.
Foreign Secretary David Miliband claims the document should remain confidential.
Now Lord Davidson will be allowed to put the case for "public interest immunity", on his behalf, at a future hearing - for which no date has yet been set. The hearing of Megrahi's actual appeal is still months away.
Megrahi, who was jailed in 2001, was not in court yesterday - but the appeal judges have been told he would like to attend future appeal hearings.

Monday 7 March 2016

Judges back Lockerbie evidence suppression

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

A legal battle to release a secret intelligence report which could free the Libyan man convicted of the Lockerbie bombing is to continue after judges ruled the foreign secretary had the right to suppress the document.

The ruling from the Lord Justice General, Lord Hamilton, dashes the hopes of Abdelbaset Ali Mohmed al-Megrahi that he would be quickly released.

It emerged last year that two secret papers had been given to the UK by a foreign government in September 1996, four years before al-Megrahi's trial began, but had never been disclosed to his defence team even though Scottish police and prosecutors had seen them.

Last July, the Scottish criminal cases review commission said that one of those documents raised further doubts about his guilt, and had played a key role in its decision to return al-Megrahi's conviction to the appeal court. It refused to disclose its contents or origin, however.

The Libyan's lawyers claim the document is essential to his appeal and are contesting the decision by the foreign secretary, David Miliband, to grant public interest immunity suppressing the papers on behalf of the British government.

The lawyers told three appeal judges last month that only the Lord Advocate, Elish Angiolini, had the right to withhold papers in a Scottish court and she had said she had no objection to them being released.

However, the judges ruled that the Lord Advocate had said that disclosure of those papers was a decision for the foreign secretary – an opinion they upheld. Al-Megrahi's lawyers will make a further attempt to force disclosure of the documents later this summer.

Miliband has told the court that releasing either document would cause "real harm" to the UK's national security, its counter-terrorism efforts and its relations with the country which supplied the papers.

Government lawyers have denied claims it came from the US government or the CIA, but said the foreign government involved had refused requests to release it.

Al-Megrahi, then a sanctions buster for Colonel Muammar Gadafy, was convicted in 2001 of murdering 270 passengers, crew and townspeople after planting a suitcase bomb in Malta which eventually blew up Pan Am Flight 103 over Lockerbie, the small town in south west Scotland.

He has been ordered to serve at least 27 years for the bombing.

[RB: A similar report on the BBC News website can be read here.]

Sunday 21 February 2016

Westminster 'meddling' in Megrahi case

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

The UK Government has been accused of "interference" in the appeal of the man convicted of the Lockerbie bombing.
The charge was made yesterday as it was revealed for the first time that Scotland's top prosecutor would be prepared to release a top secret document which could overturn the case, but that UK ministers are blocking the move.
The Court of Criminal Appeal in Edinburgh was told that Elish Angiolini, the Lord Advocate, would be prepared to disclose the document which was uncovered during the three-year investigation of the Scottish Criminal Cases Review Commission which resulted in the case being referred back to the courts for a new appeal last summer.
The commission concluded the failure during the original trial to disclose this document, which comes from an un-named foreign country and is thought to contain information about the electronic timer used to detonate the bomb, could constitute a miscarriage of justice.
Although the Crown allowed the commission to see the material they have refused to disclose it to the defence.
Abdelbaset Ali Mohmed al Megrahi is currently serving 27 years in Greenock prison for the 1988 bombing which killed 270 people.
The Libyan's defence team say they need to see the document in order for Megrahi to have a fair appeal.
Maggie Scott, QC, leading Megrahi's defence team, said yesterday that according to the response from the Crown Office, "the Lord Advocate has decided that she should disclose this document for the purposes of the appeal".
She argued the lord advocate ultimately has the jurisdiction in deciding whether to disclose a document in a Scottish criminal appeal.
However, Lord Davidson, QC, the Advocate General, who represents the Westminster government in legal matters north of the border, had said no.
Ms Scott said: "No public interest objection has been taken or raised by the lord advocate. In these circumstances, the only reasonable inference is that ... the lord advocate on reflection does not consider there is a well-founded public interest objection to the disclosure of the document sought."
Ms Scott added: "When one understands this position, it becomes obvious ... the advocate general's intervention is preventing that disclosure.
"But for his intervention the document would be disclosed and when one understands that one sees the intervention by the Advocate General is interference by the UK Government in the pursuit of, the conduct of, a criminal prosecution by the lord advocate."
The advocate general is trying to invoke "public interest immunity" to keep the document secret but Ms Scott said it was incompetent for him to do so.
However, Lord Davidson claimed national security was at stake. He accused Ms Scott of "flawed logic" and said her claim the role of the Advocate General was to interfere in matters which should be left to the Scottish authorities was "wholly erroneous".
He told the court: "This is not a minor squabble. It is one of the most important issues that can ever come before a court. It is a question of national security."
The court heard that David Miliband, the Foreign Secretary, is behind moves for a public interest ruling.
Advocate depute Ronald Clancy, QC, for the Crown, also attacked Ms Scott's arguments, saying the lord advocate had not given up any of her independence.
Scotland's top judge, Lord Hamilton - sitting with Lords Kingarth and Eassie - will issue a decision at a later date about whether Lord Davidson has a right to ask them to keep the disputed document secret.
Megrahi was not in court for yesterday's hearing, but the defence said he would like to attend future appeal hearings, raising questions about where the hearings might be held.
[RB: Eventually, the court ordered that the document should be disclosed, though NOT to Megrahi or his legal team but to a special security-vetted counsel, the first time that such a creature (relatively common in English procedure) had been recognised in Scotland.]

Monday 15 February 2016

Public Interest Immunity and the UK Foreign Office

[What follows is an item that was originally posted on this blog on 15 February 2009:]

The FCO and public interest immunity

‘The Foreign Office (FCO) solicited the letter from the US State Department that forced British judges to block the disclosure of CIA files documenting the torture of a British resident held in Guantánamo Bay, The Observer can reveal.

‘The letter said that the release of papers relating to Binyam Mohamed would damage future intelligence sharing between the two countries.

‘A former senior State Department official said that it was the Foreign Office that initiated the "cover-up" by asking the State Department to send the letter so that it could be introduced into the court proceedings. (…)

‘The former senior State Department official said: "Far from being a threat, it was solicited [by the Foreign Office]." The Foreign Office asked for it in writing. They said: 'Give us something in writing so that we can put it on the record.' If you give us a letter explaining you are opposed to this, then we can provide that to the court."

‘The letter, sent by the State Department's top legal adviser John Bellinger to foreign secretary David Miliband's legal adviser, Daniel Bethlehem, on 21 August last year, said: "We want to affirm in the clearest terms that the public disclosure of these documents or of the information contained therein is likely to result in serious damage to US national security and could harm existing intelligence-sharing arrangements."’

The above are excerpts from an article in today’s edition of The Observer.

The reasons advanced by the Foreign Secretary in the Binyam Mohamed case for asserting public interest immunity are precisely the same reasons as he put forward in his PII certificate in the current Lockerbie appeal. It was claimed in the Appeal Court by the Advocate General that the UK Government had tried, but failed, to obtain the consent of the “foreign power” that supplied the document(s) which Mr Megrahi’s legal team sought to have disclosed and the non-disclosure of which at the original trial formed the basis of one of the grounds on which the Scottish Criminal Cases Review Commission held that his conviction may have amounted to a miscarriage of justice.

One is now left wondering just how hard the FCO tried to get the foreign power’s consent to disclosure, and whether it was suggested to the foreign power that the FCO’s preferred response to the request would be “No”.

Saturday 30 May 2015

Keeping timer documents secret

[What follows is excerpted from a report published on this date in 2008 in the Daily Record:]

Secret documents at the centre of a costly courtroom row are unlikely to help Libyan agent Abdelbaset al-Megrahi overturn his conviction for the Lockerbie bombings, it was claimed on Wednesday.

Al-Megrahi, 56, is serving a minimum of 27 years of a life sentence for bringing down a United States-bound Pan Am flight in December 1988 with the loss of 270 lives – regarded as Scotland’s worst mass murder.

His claims of innocence have been referred to appeal judges by the Scottish Criminal Cases Review Commission which investigates possible miscarriages of justice.

The SCCRC say that before the trial started al-Megrahi’s defence team should have been shown papers which an unknown foreign government handed over to UK authorities – believed to be about the bomb’s electronic timer.

But defence lawyers cannot get their hands on the documents because the Westminster Government say that revealing their contents will harm foreign relations and hamper the war on terror.

The Court of Criminal Appeal in Edinburgh is now locked in a three day debate about how to conduct a hearing into whether or not the documents can be kept secret under a “public interest immunity certificate”.

As well as the three appeal judges there are nine advocates in the Edinburgh courtroom – five of them QCs.

Advocate General Lord Davidson of Clova QC – who represents Westminster of legal issues in Scotland – has suggested a procedure never before seen in Scotland.

Judges would be allowed to read the secret papers then decide – behind closed doors – whether they should be handed over.

But al-Megrahi’s lawyers would be kept out and replaced by a security-vetted advocate to try to ensure fair play.

Today it was the turn of advocate depute Ronald Clancy QC to give the view of prosecutors.

He told the judges in Edinburgh that Lord Advocate Elish Angiolini QC, responsible for criminal prosecutions in Scotland, would hand over the documents if Foreign Secretary David Miliband had not objected.

“They are not likely to be important to any undermining of the Crown case or cast doubt on it”, he said.

Mr Clancy also suggested that a possible way round the difficulty might be for defence lawyers to see an edited version of the controversial documents.

Margaret Scott QC, senior counsel for al-Megrahi, insisted that without sight of the document she could not properly prepare for the Libyan’s appeal – which is still months away, at least.

“Al-Megrahi’s position here is that he wants disclosure of these documents in order to exercise his right of appeal,” she said.

The papers were “material” because the SCCRC had said so, she added.

Ms Scott also criticised the proposals for a special security-vetted lawyer to encroach on her job.

“My main concern is any proposed procedure which determines the substance of the appeal taking part in the absence of al-Megrahi or his defence counsel”, she said.

[RB: Will we have to go through all this again if the current application to the SCCRC results in a reference of the case back to the Appeal Court, but with Richard Keen QC (whose appointment as Advocate General for Scotland was announced yesterday) seeking to keep the documents out of the hands of the lawyers arguing the appeal on behalf of the late Abdelbaset Megrahi?]