Request for information on Megrahi case before further deterioration in his health

 

 

Matt Berkley <matt@mattberkley.com>

16 September 2009 15:27

To: peter-jozsef.csonka@ec.europa.eu

 

Mr Peter-Jozsef Csonka

Head of Criminal Justice Unit

Directorate-General for Justice, Freedom and Security

European Commission

 

 

 

Dear Mr Csonka,

 

Request for information on Megrahi case before further deterioration in his health

 

 

I am the brother of a passenger on Pan Am Flight 103 which crashed at Lockerbie, Scotland, in 1988. 

 

I am writing to ask for information relating to assessment of criminal proceedings in the case of Abdulbaset al-Megrahi. 

 

Mr M. H. Beerenboom of the European Commission was nominated in 2000 by the Secretary-General of the United Nations to observe the trial of Mr Megrahi and the co-accused Mr Fhimah.

  

The documents I would like are relevant reports from Mr Beerenboom, and any other documents relating to observation or assessment of criminal proceedings in Mr Megrahi’s case.    

 

As you may be aware, there have been statements on the trial from the League of Arab States, the then Organisation for African Unity and the International Progress Organization, which between them sent the other four trial observers, but not from the European Commission.

 

It might be in the interests of justice for Mr Megrahi to see reports while he is alive, especially as the Scottish Criminal Cases Review Commission was of the view that there may have been a miscarriage of justice and that it was in the interests of justice for a second appeal to be heard.      

 

The appeal was abandoned: I have made some points about the circumstances of that, and other relevant matters in an appendix below.

 

I hope you will appreciate that without knowing what exists in the way of reports and other documents relating to assessment of the criminal proceedings, it is difficult for me to be precise as to what time period to specify or documents to request.   I do not know, for example, the extent to which the Mr Beerenboom may have reported on events after the first appeal, or the extent to which other documents relate to these events. 

 

Prima facie it might seem that the most relevant documents important for release before the death of Mr Megrahi might be reports at the end of the trial and first appeal. 

 

If you were to ask me now for the purposes of speed which documents I wished to be given priority, I would say the reports themselves, or failing that the most relevant assessments or accounts of the reports.   The question of which documents may be in fact most relevant to assessment of the proceedings may have a different answer, which I appreciate might need further time. 

 

So far as is possible, it would seem that if there is a valid argument that the interests of justice favour release of documents, then it might be advantageous for that to happen while Mr Megrahi is not only still alive but also in a physical, mental and emotional state to comment on them. 

 

If the reports and other documents are to be sent to me, I would prefer that it be by email.

 

 

If it is not straightforward to release such documents in the near future relative to possible deterioration in the patient’s health, then I would be grateful for details of:

 

-         relevant documents in existence;

-         reports made in any form by Mr Beerenboom;  

-         regulations and procedures governing decisions about such information, and considerations relevant to timescales; and

-         who could authorise disclosure. 

 

 

If there is a straightforward answer to the effect that no release of reports or other documents with content relevant to assessment will be granted, then I would be grateful for 

      - the opportunity to present a more considered case, and

 

      - documents relating to the mission’s stated purpose both pre-trial and at later times.  

 

If you would like clarification of any points I make in this letter or the Appendix, or documentary evidence for factual claims I have made, please contact me.

 

 

Thank you for giving your attention to this letter.

 

 

Yours sincerely,

 

 

Matt Berkley

 

266 Banbury Road

Oxford

OX2 7DL

England

 

+44(0)7868 397699

mattberkley@gmail.com

 

 

 

 

 


Appendix: Possible considerations for release of information

 

 

 

 

Justice and the patient

 

 

In relation to justice for Mr Megrahi himself, we could consider this:  

 

If after his death it were to become clearer somehow that he were not guilty, or that there had been a miscarriage of justice, then it might be unfortunate and unfair that he did not have the opportunity to see and comment on reports by observers - either approving or otherwise.  

 

 

If it became clearer that


a) he was guilty or

b) the trial court did not act unreasonably as the SCCRC thought it did, or

c) any unreasonableness was not important as the SCCRC thought it was,

then it is not clear how publication of a report would be problematic.   

   

 

 

 

 

 

Possibility of future appeal

 

 

It is possible in the Scottish legal system for the verdict to be formally overturned by a court even after he has abandoned his appeal.   

 

That is because the SCCRC is not restricted by legislation in any relevant way from making a second referral to the appeal court. 

 

The SCCRC could decide at some point, with or without further evidence having emerged since their 1997 referral, that there is still a possibility of a miscarriage of justice and that it is still in the interests of justice for the case to be heard.  

     

The SCCRC does not need an application from the person convicted.  In Scotland an appeal may be conducted after the death of the convict by a person with a legitimate interest.  That definition could include a close relative or possibly a relative of a person who died in the original event. 

 

It is not impossible that the following sequence might occur:  request for observers’ report refused;  convict dies;  verdict formally overturned.  

 

The possibility of a future application to the SCCRC might provide an additional reason for the report of an observer to be made available, and not simply because it might provide support for an appeal.   

 

 

 

 

 

Other ways evidence might emerge

 

 

There are other ways than through the SCCRC whereby doubt about the conviction could become more widespread. 

 

The likelihood that evidence will emerge which is relevant to the question of a miscarriage of justice is perhaps increased by the facts that:   

a) the SCCRC’s 800-page statement of reasons for referral, with 13 volumes of appendices, has not been made public; and

b) both the Scottish Government and Mr Megrahi’s lawyer have spoken of the possibility of releasing some of this material.   

 

 

 

 

 

Interests of justice: convicts, victims, precedents

 

It might be thought in the interests of justice for three categories of people  -  Mr Megrahi, relatives of victims, and those affected in future by a precedent  -  that the reports of international observers should be released before the death of the man convicted. 

 

If Mr Megrahi were to die before sight of the European Commission observer’s report, he would not have the opportunity to comment on it or answer any questions or points it raised.

 

If that were to happen, then other people including relatives of those who died in the crash would not have the opportunity to hear those comments or answers.     

 

 

 

 

 

Bereaved relatives and this case

 

More generally, the contents of observers’ reports are of interest to bereaved relatives, not just for their overall conclusions but also for specific points they might contain relevant to their own assessments.   The absence of specific points may also be of interest.

 

Different relatives have different interests in the material.  I personally was unable to justify accepting money on the basis of the evidence in, and the approach of, the trial court’s statement of reasons for conviction.   

 

As I expect you are very aware, relatives have widely differing views on the adequacy of the trial. 

It might be argued that irrespective of whether there were intentions from the UN, US, UK or European Commission that reports should be published from observers or statements should be published as a result of observers’ reports, the ensuing controversy over whether the conviction was clearly safe militates in favour of publication. 

 

In that controversy we might say that

 

        on one side are many US relatives, the US government, and the UK government;

 

        on the other many UK relatives, the SCCRC, the African Union, the League of Arab States, and the International Progress Organization.  

 

When I say it might be argued that the controversy militates in favour of publication, I mean that in the context of the effect of the controversy on relatives.    

 

Is it satisfactory for relatives to be in a situation where governments and intergovernmental organisations, and an official review body, disagree?

 

Does this situation provide grounds for an observer’s report to be published or unpublished?

 

 

 

 

 

The role of observers

 


On the question of the intended role of observers, there are several documents  -  UN press releases, statements by the Secretary-General, statements by his spokesman, a Security Council resolution, letter from the United Kingdom to the President of the Security Council, records of speeches in the Security Council, and documents referring to the role of the League of Arab States and the Organisation for African Unity, both of which sent observers, in bringing about the trial – which may be relevant for assessing the intentions of the United Kingdom, the United States, Libya, and the Secretary-General in relation to the assurance of a fair trial. 

 

What seems beyond doubt is that the presence of observers was offered both by governments and by the UN as part of such an assurance.     

 

 

Press Release SG/SM/6372 of 30 October 1997 reads,

 

 

 

“SECRETARY-GENERAL WELCOMES UNITED KINGDOM INVITATION TO SEND UN OBSERVERS TO TRIAL OF SUSPECTS IN LOCKERBIE BOMBING

 

The following statement was issued today by the Spokesman for Secretary- General Kofi Annan:

 

By a letter dated 28 October 1997, the Permanent Representative of the United Kingdom informed the Secretary-General that the United Kingdom would welcome the presence of international observers from the United Nations at the trial of the suspects in the Lockerbie bombing. Such observers would have full access to the suspects before and during the trial (if the suspects agree), would be able to witness all the court proceedings, and would be provided with administrative and reporting facilities. 

 

With a view to briefing the United Nations Secretariat on the safeguards to ensure a fair trial and discuss how international observers may best be accommodated in court proceedings, the United Kingdom has invited the Secretary- General to send two representatives to Scotland. They would visit Scottish prison and court facilities and meet United Kingdom representatives to discuss the modalities of a trial in Scotland in the presence of international observers.”

 

 

I am not sure how to interpret that paragraph other than as saying “plans about observers are intended to ensure a fair trial”. 

 

If that was the intention of the Secretary-General, then it might be asked how observers could ensure a fair trial if no statements were made as a result.     

 

  

On 5 April 1999 the Secretary-General said that the United Nations would make sure of an “effective international presence” to “monitor” the trial; and that observers would “assure the Libyan Government” of UN promise-keeping.   He did not challenge the description “UN observers”:



 

“Press Release SG/SM/6944

... QUESTION: I was simply wondering what sort of monitoring role the United Nations is going to have over the course of the trial's proceedings. Will there be officials from the Legal Office, for example, for as long as the trial is in session?

 

THE SECRETARY-GENERAL: Well, there are provisions for international observers, and this is something that we will need to work out. There have been suggestions that there could be international observers from various organizations, from the Arab League, from the OAU, from NAM and all that. But we are going to coordinate that and make sure that there is an effective international presence during the trial, to monitor, and then of course that there is also some provision for international monitoring of the prison arrangements if the accused were to be convicted.”

“QUESTION (spoke in French):.... If it takes years to find them guilty, does that mean that there will be United Nations observers there for a long time?

THE SECRETARY-GENERAL (spoke in French): Unfortunately, yes...I believe that they must be there long enough to assure the Libyan Government that we keep our promises.

 

 

That press release might prompt some questions about the intended role:

If the observers were to “monitor”, then in what sense would this be an “effective international presence” if they did not report whether the trial was fair through information channels available to the accused, the relatives, and the surrendering state?  

Perhaps what he meant by “monitor” would be clarified by reference to what was expected of and/or later produced by monitors of prison conditions.  In other words, if the prison monitors were not expected to comment on poor conditions, or on good conditions, then the role of the trial observers as non-speaking actors might be more a more likely interpretation.    

It could be, alternatively, that he meant “monitor” to mean “monitor and mention” in the case of the prison and “monitor and not mention” in the case of the court.   Either way, it is not clear how the observers could be effective if they were silent.  

It is not perhaps clear what he meant by a UN promise to Libya, if he did not mean that the UN was promising to ensure the trial would be fair.   A promise of observation without reporting is not of clear value to the Libyan Government. 

Although the original reference was to “international observers from the United Nations”, which in its literal sense clearly did not happen, no indication is apparent in later documents I have seen which might suggest that the original proposal was intended to be watered down. 

In other words, it is not clear what reason there was to think that observers from the European Commission and other organisations might perform a substantially different role from that envisaged in 1997 for observers from the UN - if indeed there had been an intention for the UN itself to send observers. 

 

In considering what role the observers should play, we might think about

 

a)      the intentions of those offering the trial and/or inviting observers - the Secretary-General, the Security Council and in particular the UK and the US which had made statements about fairness;

 

b)      the intentions of those sending observers;

 

c)      the reasonable expectations of others, including the the accused, the relatives, and the surrendering state.

 

 

It may be that there are European Commission documents specifying, pre-trial, the role of the observer.    I would request such documents. 

 

 

 

 

 

The abandonment of the appeal 

 

 

The fact that Mr Megrahi abandoned his appeal might be used in arguments that since the judgement is now final and/or he has thereby accepted guilt, it would not be appropriate to reopen aspects of the case including observers’ reports.   I would like to address the question of the relevance of the abandonment to that kind of argument. 

 

Mr Megrahi dropped the appeal under circumstances including a prisoner transfer agreeement which required him to do so in order to be transferred to Libya.  

 

His abandonment - for which his advocate gave as a reason that he wished to maximise his chances for the applications which had been made for transfer and compassionate release  - only came after the expiry of the 90-day normal period for a Minister to decide on a prisoner transfer application.   

 

In the event, the court accepted his request to abandon the appeal on 18 August this year – the 105th day.   The next day the Minister made two decisions: to refuse transfer, which did require abandonment, and to grant compassionate release on medical grounds, which did not.   The day after that, the Minister made an announcement and the prisoner was freed. 

 

If the Minister had refused transfer within the normal 90-day period, the legal requirement on Mr Megrahi to abandon would no longer have been relevant.  The compassionate release option eventually used would still have been there.

     

By the time Mr Megrahi had the opportunity of making his representations to the Minister in relation to prisoner transfer the 90-day period had already expired.   Mr MacAskill visited him in prison on 5 August, the 92nd day. 

 

Bearing in mind that

 

a)      the prisoner was terminally ill;

b)      he may have wished before he died to see his aged mother who was not perhaps easily able to come to Scotland, and

c)      the Cabinet Secretary could not transfer unless the appeal was dropped,

 

it is perhaps not clear that his abandonment of the appeal was related to an acceptance of guilt or of weakness in his legal case. 

 

The reason why I mention the facts about the 90-day period is this:  it is perhaps not beyond doubt that the explanation for abandonment is other than that the appellant became desperate, and/or believed that the Minister was waiting for him to abandon before transferring him.    

 

That explanation might gain in credibility given the facts that

 

a) the Minister, came to him after the normal period for decision had already ended,  and according to the Justice Department note of the meeting, reminded the prisoner that he could not be transferred with an appeal still pending; 

b) there is no evidence that the Minister reminded the prisoner of the other requirement which would have to be met but was not in the prisoner’s control, and without which he could not be transferred:  that requirement being that the Crown Office would have to drop their appeal concerned with the length of sentence;

 

c) the Minister later stated in Parliament that he could not remember whether he had told the prisoner there was no requirement to drop the appeal in order to be released on compassionate grounds.  

 

 

If indeed the Minister on the 92nd day said to him in effect:

“you cannot be transferred while your appeal is ongoing”

but not

“you are not guaranteed to be transferred even then since the Crown’s appeal is currrently ongoing”

or

“you do not have to drop the appeal for me to release you on compassionate grounds”,

 

then the prisoner might interpret this as emphasising circumstances which required abandonment rather than those which did not require abandonment.

 

The prisoner might then, on not hearing any decision from the Minister for several further days after his meeting, and perhaps on hearing rumours in the media to the effect that the Scottish Government wanted him to drop the appeal even if they were going release him on compassionate grounds, conclude that he could not risk losing out by continuing the appeal. 

 

Whatever the precise sequence of events, the point is that considering the circumstances, abandonment in this case does not seem to indicate unambiguously either admission of guilt or safety of conviction. 

 

The need for or desirability of observers’ reports might be different in a case where the appellant gave up their appeal in good health and/or with no prospect of repatriation if they did so. 

 

 

 

 

 

Human rights and access to observers’ reports

  


Setting aside for the moment questions of how the spirit or letter of current human rights legislation might relate to this issue, it might not be unreasonable, at least to the extent that notions of human rights are well-founded and coherent, to think the following: 

 

The context for the trial included concerns about fairness, and

arguably the trial’s existence depended on assurances of fairness, and

there was disagreement between the hosts of the trial and the Criminal Cases Review Commision on whether fairness had clearly been shown, therefore

a convicted person or bereaved relative has a human right to see a report.