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
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.