Lockerbie Case in Holyrood II...

Delayed recognition, but I dare say that some of you might not have noticed interesting progress in Holyrood this week, on the Justice for Megrahi petition. I was waiting for the parliamentary authorities to upload the official report to get a read of what committee members actually said in the course of their deliberations - but it has not yet materialised. Ho hum. So I thought I'd crack on anyway, while the development is still remotely contemporary. By way of background, the petition was presented to the parliament's Public Petitions Committee in the last session by Dr Jim Swire, Robert Black QC and other and despite some technical hitches in the process, attracted some 1,646 signatures. The petition calls...

"...on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988."

After taking evidence from the petitioners, the Petitions Committee wrote to the Scottish Government, asking three discrete questions:

Will you open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988 as called for by the petitioner and for the reasons given in the petition?

If not, will you provide a detailed explanation why not, specifying whether there is any legislation which would prevent you from holding such an inquiry, what this legislation is and how it prevents?

Who would have the power to undertake an inquiry in the terms proposed in the petition?

The government's answer to all three questions was basically - no. Ministers responded in the following terms towards the end of January this year:

The Cabinet Secretary for Justice made clear in his response of 16 September to a Parliamentary Question (S3W-35844) from George Foulkes on this issue that the Government have no plans to initiate an inquiry on this issue.

The Government does not doubt the safety of the conviction of Mr Al-Megrahi. He was tried and convicted by a Scottish court before three judges and his appeal against conviction, heard by a panel of five judges, was unsuccessful. A second appeal, following a referral from the Scottish Criminal Cases Review Commission, was abandoned by Mr Al-Megrahi. The conduct of his defence during his trial and the appeals, including his decision not to give evidence at trial and the decision to abandon the second appeal, was entirely a matter for Mr Al-Megrahi and his legal advisors.

The Government’s view is that the petition is inviting the Scottish Government to do something which falls properly to the criminal justice system i.e. inquire into whether a miscarriage of justice has taken place. The criminal justice system already provides a mechanism for that to happen. The fact that Mr Al-Megrahi chose to abandon his second appeal rather than pursue it is entirely a matter for him and it would not be appropriate for the Scottish Government to institute an inquiry as a result.

The Inquiries Act 2005 provides that, to the extent that the matters dealt with are devolved, and criminal justice is devolved, the Scottish Government would have the power to conduct an inquiry. However, the wide ranging and international nature of the issues involved (even if the inquiry is confined to the trial and does not concern itself with wider matters) means that there is every likelihood of issues arising which are not devolved, which would require either a joint inquiry with or a separate inquiry by the UK government.

Separately, the Scottish Government intends to bring forward legislation to allow the SCCRC to publish a statement of reasons in cases such as Mr Al-Megrahi's where an appeal is abandoned, subject of course to legal restrictions applying to the SCCRC such as data protection, the convention rights of individuals and international obligations attaching to information provided by foreign authorities.

The Committee also received correspondence from such varied bodies as the Lord Advocate and the Scottish Criminal Cases Review Commission, asking the latter whether they can re-open an abandoned appeal before the Court of Criminal Appeal. On the 28th of June, the freshly constituted Public Petitions Committee agreed "to refer the petition to the Justice Committee under Rule 15.6.2 for further consideration".  Under the parliament's standing orders, the Committee could have responded in a number of ways. It might have unilaterally closed the petition [Rule 15.7]. Indeed, Holyrood's Justice Committee may decide to do so in due course. One significant aspect of this development is that the chair of the committee to which the petition has been referred, the SNP's Christine Grahame, has gone on record on several occasions, questioning Megrahi's guilt. Of course, by no means does the petition's continuing survival in Holyrood suggest that any independent public enquiry will be held into the case. What it does mean, however, is that questions about the evidence against Megrahi and his culpability for the atrocity over Lockerbie will continue to find voice the Scottish public sphere, in the months to come.

Yes (Scottish) Minister: Episode 1...

"Atten-shun! Do swear as medical duty, the following ministers - fit to serve. Or at least. Um. Appointit..."

Scottish Ministers...

Alex Salmond: First Minister

Nicola Sturgeon: Deputy First Minister and Cabinet Secretary for Health, Wellbeing and Cities Strategy

• Shona Robison: Minister for Commonwealth Games and Sport
• Michael Matheson: Minister for Public Health 

John Swinney: Cabinet Secretary for Finance, Employment and Sustainable Growth

• Fergus Ewing: Minister for Energy, Enterprise and Tourism
• Aileen Campbell: Minister for Local Government and Planning

Michael Russell: Cabinet Secretary for Education and Lifelong Learning

• Angela Constance: Minister for Children and Young People
• Alasdair Allan: Minister for Learning and Skills (with responsibility for Gaelic and Scots)

Bruce Crawford: Cabinet Secretary for Parliamentary Business and Government Strategy

• Brian Adam: Minister for Parliamentary Business and Chief Whip

Kenny MacAskill: Cabinet Secretary for Justice

• Roseanna Cunningham: Minister for Community Safety and Legal Affairs (with responsibility for tackling sectarianism)

Richard Lochhead: Cabinet Secretary for Rural Affairs and the Environment

• Stewart Stevenson: Minister for Environment and Climate Change

Fiona Hyslop: Cabinet Secretary for Culture and External Affairs

Alex Neil: Cabinet Secretary for Infrastructure and Capital Investment

• Keith Brown: Minister for Housing and Transport

Law Officers...

Frank Mulholland: Lord Advocate

• Lesley Thomson: Solicitor General

There we have it. The final ministerial team. Plenty of talented folk there and a great deal of continuity across the top tier, with the elevation of that old pickle-faced pugilist Alex Neil probably prompting the most comment. Just a few, brief thoughts. It may have been Beaker's midwinter, but you'll see Alex Salmond has thawed out his old crony Stewart Stevenson as Minister for Environment and Climate Change, thereby depriving the Banff and Buchanshire MSP of time he could have otherwise have devoted to recreational flying. According to my network of peat worrying informants, Roseanna Cunningham didn't prove much of a hit in her previous role dealing with the Environment and Climate Change, although this may simply reflect on the calibre of the chap she replaced. Pat Kane memorably sketched his impressions of Michael Russell, who keeps his Cabinet education role, in a Caledonian Mercury column a while back. Kane said...

"Let your eyes film over, and you can see him in gaiters and periwig holding forth in an 18th century coffee-house, or perhaps in pith-helmet and wire spectacles lieutenanting some still-red section of the World Atlas."

'Mon the perukes! But I digress. Perhaps a more legally-oriented brief, more consonant with Roseanna's background will better serve her capacities (she qualified in Scots Law and as an advocate before entering politics). It would be remiss of me not to mention, in the context of imminent (and in my view potentially exceedingly unwelcome) legislation criminalising online sectarianism, that it may not be coincidental that Salmond has chosen to appoint a weel-kent and devoted Roman Catholic with a specific remit over this aspect of the broad justice portfolio. Fergus Ewing, himself another tidy old legalist, shuffles out from under Kenny MacAskill, to cabal with John Swinney as Minister for Energy, Enterprise and Tourism. 

I confess, I was a little disappointed to see Frank Mulholland QC appointed Lord Advocate to replace Elish Angiolini, not least because it was terrifically predictable. More substantially, in my limited experience of the fellow, he gave what was (in my view) rather unhelpful advice to the ad hoc parliamentary Committee which scrutinised Margo MacDonald's Assisted Dying Bill in the last session. Obviously, responsibility for failing to ask the needling questions must lie with parliamentarians, rather than the Solicitor-General as Mulholland was, but it wasn't a particularly impressive showing from the man who now not only heads up the Scottish prosecution service, but must advise the Scottish Government on matters legal, well outside Mulholland's more narrow criminal specialisms.  My erstwhile lecturer from my days in Edinburgh Law School, Robert Black QC, has expressed his own qualms, arguing on his Lockerbie Case blog...

"This appointment is not unexpected, but it is to be regretted. Virtually the whole of Frank Mulholland's career has been spent as a Crown Office civil servant. This is not, in my view, the right background for the incumbent of the office of Lord Advocate, one of whose functions has traditionally been to bring an outsider's perspective to the operations and policy-making of the department. Sir Humphrey Appleby was an outstanding civil servant of a particular kind, but his role was an entirely different one from that of Jim Hacker and no-one would have regarded it as appropriate that he should be translated from Permanent Secretary of the Department of Administrative Affairs to Minister (or, indeed, from Secretary of the Cabinet to Prime Minister)."

Caveats despite, I wish all of the newly appointed ministers well in their respective roles, particularly those entering office for the first time. By my reckoning, the SNP's Aileen Campbell, elected for Clydesdale, must be the youngest-ever second youngest Scottish Minister to take office since devolution*, appointed today in her tender years, aged only 31.

*Shortly after publishing this, my late-week addled mental fibres were tested by trying to deduce whether Labour's Alasdair Morrison, who was made a Deputy Minister in Donald Dewar's first Executive, actually snatches the youthful garland from Campbell's head. Some strangulated elementary mathematics reveals that Morrison was aged only 30 when he was appointed Deputy Minister for the Highlands and Islands and Gaelic in 1999, confirmed by the Executive's press release of the day. Since Aileen is definitely aged 31, albeit only celebrating her birthday a few days ago, I erred by initially identifying her as Holyrood's youngest ever Minister. Apologies and thanks to Bright Green's Peter McColl, for helping me finally to muddle through to the correct answer!

SG: No Lockerbie Case inquiry...

Belated, but worth mentioning that the Scottish Government has finally replied to Holyrood's Public Petitions Committee on its attitude towards an independent inquiry into the Lockerbie Case. After their November session, taking oral evidence from Jim Swire and others on the Justice for Megrahi petition, the Committee posed three questions. The petition itself calls:

"...on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988."

Robert Black QC has described the following response as a "wafer-thin pretext for inaction". Judge for yourselves.

PUBLIC PETITIONS COMMITTEE: PE1370

Thank you for your letter of 12 November 2010 which asks the Government the following three questions in respect of this petition. I apologise for the delay in replying.

Will you open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988 as called for by the petitioner and for the reasons given in the petition?

If not, will you provide a detailed explanation why not, specifying whether there is any legislation which would prevent you from holding such an inquiry, what this legislation is and how it prevents?

Who would have the power to undertake an inquiry in the terms proposed in the petition?

The Government’s response to these questions is as follows:

The Cabinet Secretary for Justice made clear in his response of 16 September to a Parliamentary Question (S3W-35844) from George Foulkes on this issue that the Government have no plans to initiate an inquiry on this issue.

The Government does not doubt the safety of the conviction of Mr Al-Megrahi. He was tried and convicted by a Scottish court before three judges and his appeal against conviction, heard by a panel of five judges, was unsuccessful. A second appeal, following a referral from the Scottish Criminal Cases Review Commission, was abandoned by Mr Al-Megrahi. The conduct of his defence during his trial and the appeals, including his decision not to give evidence at trial and the decision to abandon the second appeal, was entirely a matter for Mr Al-Megrahi and his legal advisors.

The Government’s view is that the petition is inviting the Scottish Government to do something which falls properly to the criminal justice system i.e. inquire into whether a miscarriage of justice has taken place. The criminal justice system already provides a mechanism for that to happen. The fact that Mr Al-Megrahi chose to abandon his second appeal rather than pursue it is entirely a matter for him and it would not be appropriate for the Scottish Government to institute an inquiry as a result.

The Inquiries Act 2005 provides that, to the extent that the matters dealt with are devolved, and criminal justice is devolved, the Scottish Government would have the power to conduct an inquiry. However, the wide ranging and international nature of the issues involved (even if the inquiry is confined to the trial and does not concern itself with wider matters) means that there is every likelihood of issues arising which are not devolved, which would require either a joint inquiry with or a separate inquiry by the UK government.

Separately, the Scottish Government intends to bring forward legislation to allow the SCCRC to publish a statement of reasons in cases such as Mr Al-Megrahi's where an appeal is abandoned, subject of course to legal restrictions applying to the SCCRC such as data protection, the convention rights of individuals and international obligations attaching to information provided by foreign authorities.

Karen Rodger

Committee Liaison Officer

Source and further commentary.

Lockerbie case in Holyrood...

There is one fascinating passage which I neglected to mention in my Sunday review of David Torrance's biography of Alex Salmond, Against the Odds. It is particularly worth highlighting today, as the Scottish Parliament's Public Petitions Committee sits this afternoon to consider the Justice for Megrahi petition, which calls:

"...on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988."

The petition received 1646 signatures - including mine - and will be spoken to today by Jim Swire, whose daughter Flora perished in the tragedy; Robert Black QC, who many of you will undoubtedly have encountered on his Lockerbie Case blog; former police officer Iain McKie and co-founder of the campaign committee, Robert Forrester. Although the title of the petition suggests a particular view of the guilt of al-Megrahi, and its founder members are folk who believe him to have been wrongly convicted, the petition itself is ecumenical. If doubts are harboured, outstanding questions remain - that is a real issue for those people who believe he was properly convicted. There are others - including myself - who are cautious about taking a strong position on the question of Megrahi's guilt. Not having seen the evidence, one ought to be shy of certainties. That ought to include all certainties, including the idea that the judges of the High Court of Justiciary who tried him are exempt from human error, that all the relevant evidence was presented, that doubts were justly explored. Although not a figure I'd normally expect to borrow the words from my own mouth, Cardinal Keith O'Brien pretty faithfully articulates my own concerns and why, like him, I support the independent enquiry Holyrood is being petitioned to conduct today:

"Earlier this year, I described the murder of 243 innocent people on board Pan Am flight 103 over the town of Lockerbie on 21 December 1988 as an act of unbelievable horror and gratuitous barbarity. Many legal consequences flowed from that act culminating in the conviction of a Libyan citizen, Abdelbaset Ali Mohmed al-Megrahi for the bombing. From the moment that verdict was announced, voices have been raised in protest. Over the years the clamour has grown amongst, lawyers, politicians, academics and growing numbers of ordinary citizens that the verdict amounted to a miscarriage of justice.

I do not claim to have examined all the evidence in this case, far from it, but I do claim to be increasingly concerned about the reputation of the Scottish Justice system. I have defended publicly the system of justice in this country and have done so because it enjoys my support and confidence. Global accusations of wrongful conviction made against our system must be dealt with. Left unheeded they will weaken the administration of justice in Scotland by casting doubts on its probity and ability. I believe the best way to remedy this is for the Scottish Parliament to launch an independent inquiry into the 2001 conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103.

Regardless of the outcome I believe Scotland’s Justice System would be strengthened by such a process. Either a conviction will be upheld and the process vindicated or it will be struck down, demonstrating to the world that Scotland has the wisdom and compassion needed to rectify its mistakes. In either event I will willingly accept the outcome.”

But back to Salmond and Torrance. In some quarters, it is often assumed that Megrahi's compassionate release was predicated on an unavowed belief that the man was innocent. When he was released from prison, the most familiar argument I encountered was a confused one - but reduced to its bones it ran - if he was innocent he should go free, if he was guilty he should have stayed in prison. At the time, I suggested that this was to confuse justice with mercy, obliterating the particular features of the latter. Interestingly, Torrance presents evidence that Salmond himself seems to have made no such conflation, arguing that:

"... Salmond most likely believed that al-Megrahi was guilty as charged. Indeed, the BBC journalist James Cook recalled asking the First Minister about his own view shortly after the release. Salmond replied that one of his first actions on coming to office had been to request all the papers relating to Lockerbie which, having read them, led him to believe al-Megrahi's conviction was sound." (Torrance (2010) Salmond Against the Odds, p. 264.)

The first hour of the Committee's time was taken up with discussion of the petition today. The panel's evidence can be seen here:

The Sheridan Case II: The Implications of Corroboration

After the trumpeting ballyhoo attending Tommy and Gail Sheridan’s appearance at Parliament House on the 13th of July, I don’t anticipate much further coverage of the matter until proceedings begin in earnest at the beginning of 2010. The press get reasonably jumpy about finding themselves up before a stern-eyed Senator of the College of Justice, lest their little articles show contempt for the court, and ruin the accused’s chances of (modestly) unbiased justice. We bloggers face similar risks of admonition, therefore it behoves us to be mildly cautious.

Eschewing my usual, broadest-brush approach to things, I thought I might indulge in a sliver of forensic precision, and return briefly to the detail of the indictment – and how the Scottish law of evidence might suggest that the suborning of perjury charge narrated might produce something explosive at trial. The theme is a blawgish one, but I trust, with more general interest for those with half an eye on Tommy’s proceedings. The theme may be of academical interest to the man himself, who is, as we know – allegedly a full time law student at the University of Strathclyde. If it was ever his intention to practice, one of the major consequences of any conviction for perjury is the death of this dream. In short, if he’s convicted, he’s screwed. As my lecturer on this subject, Robert Black QC once growlsomely insisted in his grandiloquent way – “you must know your law of evidence”!

But let’s toddle back to the primary theme. As I blogged at the time, I was surprised by the “subornation of perjury” element on the indictment – which as far as I can tell, has emerged, as our American cousins would say – “from left field”. Here is the precise wording of the charge:

(1) you THOMAS SHERIDAN having raised an action of defamation in the Court of Session, Parliament House, Parliament Square, Edinburgh against News Group Newpapers Limited, 124 Portman Street, Kinning Park, Glasgow, a company incorporated under the Companies Acts, being the publisher of the News of the World newspaper, in which you alleged that on 21 November 2004 the said newspaper had published an article communicating the false idea that you had visited a “swingers club” with Anvar Begum Khan, c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh, and knowing that a civil jury trial had been fixed for the hearing of said action on 4 July 2006 and having on 9 November 2004 at a meeting of the Executive Committee of the Scottish Socialist Party held at 70 Stanley Street, Glasgow, attended by, among others, Colin Fox, c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh, admitted attending such a club and in particular Cupid's Healthclub, 13-17 Sutherland Street, Swinton, Manchester on two occasions in 1996 and 2002 and knowing that accurate minutes of the said meeting existed and had been lodged on 16 June 2006 at the said Court on behalf of the said defender and that said Colin Fox was to be called as a witness at said trial did on 18 June 2006 at the premises known as The Beanscene, 67 Holyrood Road, Edinburgh attempt to suborn said Colin Fox, to falsely depone as a witness that the minutes of said meeting were not accurate and you did thus attempt to suborn said Colin Fox to commit perjury

That is the wording. Here is the question. How will the Crown prove this charge in law? There is obviously the human, rhetorical component, and the jury’s mood – but there are other constraints which are not simply reducible to jury attitude. We must also take into account questions of sufficiency of evidence for a conviction. In Scotland, this is generally known as the corroboration rule, and has been subject to critical attention primarily in the area of sexual offences which are subject to a paucity of evidence. However, certain statutory offences excepted, corroboration remains the general rule across the offences prosecutable in the criminal law.

What does the rule require? Basically, corroboration means that in order for there to be sufficient evidence for the accused to be convicted – whatever the jurors happen to believe about that person’s guilt or innocence – the crucial facts have to be supported by two, independent sources of evidence. Importantly, not all facts which are involved in determining the accused’s guilt are categorised as crucial. In general, the crucial facts of a charge, requiring to be proved with corroborated evidence, are that the crime was committed, and that it was the soul in the dock whodunit. This sufficiency of evidence can be achieved in a number of ways. You can have the direct evidence of two witnesses who testify to the same fact – “I saw him stab the victim”. Alternatively, corroboration can be achieved by producing two or more material facts which can support the inference that such a crucial fact exists – “The accused was found carrying the bloodied knife – the blood type and blade type matching the injuries found on the victim. Another woman saw him fleeing the scene in a distressed fashion, carrying his cutlass.” Finally, and perhaps obviously, a mixture of these types of facts can be in evidence, where direct witness statements are stirred into a pot of circumstantial facts from which a reasonable inference of culpability can emerge.

Those are the Crown’s options. If we assume, with giddy good faith, that the Crown aren’t just stoking their indictment, and have marshalled corroborated evidence for the subornation of perjury charge, what will it be? Obviously, the first and primary source of evidence must be Colin Fox ex-MSP. That seems clear. What will the corroborating proof be, however? Perhaps a barista in the Beanscene saw them talking. However, that is circumstantial to the point of vapidity. It doesn’t prove that they were talking about the minutes of the SSP Executive meeting, nor does it imply that Sheridan was making a stab at inducing Fox to fictionalise his account. Add a bit more detail, perhaps. An earwigging soul seated a few tables away – or perhaps the few words caught by the waiter as steaming double espressos were brought to Sheridan and Fox’ table. (This has suddenly turned all Regency London. I am reasonably certain, however, that Charles James Fox and Richard Brinsley Sheridan would have gone in for something a little stronger than vast, bitter tubs of coffee if they were a’plotting.)

My point is, if the suborning perjury charge is to proceed, it must have a surrounding evidentiary architecture which can withstand the weight of the legal tests put on it. The Crown, knowing this, couldn’t have indicted in good faith otherwise. Because of the crucial importance of communication in the charge, accumulating material evidence which proves or could prove that they were more than talking – but that the talking amounted to the suborning of perjury – would seem a profoundly difficult undertaking, with a high hurdle of evidential sufficiency to o’erleap.

At the time the indictment was published, I speculated that Fox might have tucked a Dictaphone slyly about himself. While not immune to interrogation about the “independence” of recording evidence taken by the witness – and added to that, difficulties about determining the time the recording was taken, and ascertaining beyond reasoned doubts who is who on the recording – this would seem one of the few ways, depending on what was said, to confirm confidently the witness testament of Fox. This is obviously only speculation. The detail of the legal requirement to convict on corroborated evidence, however, is not. The Crown must have found an evidential something which it considers sufficient, with the jury convinced, to justify in law a conviction for suborning perjury. We’ll have to dangle about until the new year to see what this is. Nestled in the dry lifelessness of the indictment text, mysteries reside. The unwrapping of the enigma will be vivid, dramatic stuff.