Lockerbie — Diabolical Endgame — Part I : SCCRC & The Grounds of Appeal [UPDATE — Kenny MacAskill : New trial will not provide closure on Lockerbie.]

“The Devil’s cleverest wile is to make men believe that he does not exist.”

Charles Baudelaire — “Le Joueur Généreux” (Le Figaro –1864)

On March 11 2020, the Scottish Criminal Cases Review Commission [SCCRC] decided to refer the Lockerbie case back to the High Court of Justiciary for determination.  As a result of the Commission’s decision, Mr Megrahi’s family is now entitled to instruct an appeal against his conviction.

To many observers, the SCCRC decision marks the beginning of Justice. I am afraid that I share neither their joy, nor their hopes.  Follow us on Twitter: @INTEL_TODAY

RELATED POST: Lockerbie — SCCRC Refers Case Back to Court

RELATED POST: LOCKERBIE 30th Anniversary — PT/35(b) : An Overview of the Lockerbie Case

RELATED POST: Lockerbie 30th Anniversary — What do you think about the Lockerbie verdict? [Poll Result – December 21 2018]

RELATED POST: Lockerbie & the Glorious ‘Conspiracy Theorists’

RELATED POST: Lockerbie and the SCCRC — A primer from Law Professor Robert Black

UPDATE (March 19 2020) —  Former Cabinet Secretary for Justice (2007–2014) Kenny MacAskill appears to be one of the few people who actually has read the SCCRC report.

Today, he penned a short piece published by the Scotsman. [Lockerbie bombing: Megrahi case review may not provide closure but there are people who might be able to.]

The Scottish Criminal Case Review Commission’s decision to refer the Megrahi case back to the courts really isn’t a surprise.

Issues of concern in the Lockerbie bombing trial include not least the witness payments to Tony Gauci.

So back the case goes and while it may resolve some aspects relating to Abdelbaset al-Megrahi, I won’t hold my breath that it’ll cast any more light on Lockerbie.

Sadly, this review will clarify some questions regarding Megrahi, but I very much doubt it’ll provide closure on Lockerbie.

This quick analysis is perfectly correct. I wonder how long it will take for the Media and various observers to understand that the SCCRC decision is a scandal?

END of UPDATE

The Devil is in the details. And a careful reading of the SCCRC statement of reasons indicates that all hopes of Justice have already been annihilated.

Two hundred and seventy souls died on December 21 1988. To this day, the true culprits have never been identified.

On March 11 2020, the TRUTH was murdered. And this time, the killers stand before our eyes. And it is my intention to name them.

The 11th hour

At 11 a.m. on March 11 (To add a sense of drama?), the [SCCR] Commission delivered the full statement of reasons to the office of Aamer Anwar, the lawyer of Megrahi’s family.

As we shall see, “statement of unreason” may be a more adequate expression. If the date had not fallen on a Sunday, they may very well have delivered the 419 pages report on the Ides of March.

The 11th hour is usually considered the final moment when change is possible. But in truth, the game is over. Most people simply do not understand it yet.

Family, friends, and lawyers overjoyed

Ali al-Megrahi, the son of the applicant, said:

“Finally, my family has hope that our father’s name will be cleared. I am grateful to all those who have supported my family in their long struggle for justice.”

Lawyer Anwar told a press briefing that the commission had delivered “a damning indictment of the process”.

“The Commission have gone on to deliver a damning indictment of the process and believe that a miscarriage of justice may have occurred by reason of an ‘Unreasonable Verdict’ and the ground of ‘Non-Disclosure’.

These grounds incorporate many of the issues we had identified in our application.”

How many grounds?

Megrahi’s legal team submitted six grounds why the Megrahi case constituted a miscarriage of justice.

— Mr Anwar asked the Commission to find that its original reference grounds in 2007 remain ‘valid and compelling’ reasons for the Commission to refer the case again to the High Court.

— Mr. Anwar also asked the Commission to review the two grounds argued at the abandoned appeal, on which the High Court did not deliver its opinion: insufficient evidence and unreasonable verdict.

— Finally, Mr. Anwar raised two new matters: the suitcase ingestion and the infamous PT/35(b) timer fragment.

The Commission considered that all these points formed the following six broad grounds of review:

Ground 1: Insufficient Evidence

Ground 2: Unreasonable Verdict

Ground 3: Fresh Evidence: The Christmas Lights

Ground 4: Non-disclosure

Ground 5: Timer Fragment PT/35(b)

Ground 6: The Suitcase Ingestion

The commission only upheld two of these grounds: Ground 2: Unreasonable Verdict and Ground 4: Non-disclosure.

Thus, the commission concluding a miscarriage of justice may have occurred by reason of an “unreasonable verdict”, which allows an appeal on the basis that a conviction was based upon a verdict that no reasonable jury could have returned, and on the ground of “non-disclosure”.

There is simply nothing new to these grounds. The Commission simply reaffirms that no reasonable trial court could have accepted that Megrahi was identified as the purchaser.

Towards a quashed verdict?

One would conclude from the SCCCRC statement that the acquittal of Megrahi is a foregone conclusion. One would be wrong.

Again read carefully the statement:

“Because the court’s specific conclusion that he was the purchaser was integral to the court’s ultimate conclusion that he was guilty of the murders libelled, the Commission believes that, notwithstanding that the remaining chapters of evidence pointed to the involvement of operators of the Libyan state in the execution of the crime, a miscarriage of justice may have occurred because no reasonable trial court, relying on the evidence led at trial, could have held the case against Mr Megrahi was proved beyond reasonable doubt.”

In other words, the SCCRC has already narrowed the debate to a range from which any discussion regarding the truth about Lockerbie is rigorously excluded.

Libya is responsible for Lockerbie. End of the story. All that is left for the Appeal Court to debate is whether Megrahi or another Libyan terrorist is responsible for the crime.

And even that fight could be tricky… Megrahi may not be the purchaser, but he could very well be the mastermind of the attack.

Pay attention to the words: “relying on the evidence led at trial”. It seems that the SCCRC is already paving the way for the Crown to reveal new evidence against Megrahi that could not have been disclosed 20 years ago.

Did you ever wonder who decided to leak the CIA  Minerva files last month? And why?

Ground 5: Timer Fragment PT/35(b) “incomprehensibly” ruled out

PT/35(b) was the central piece of evidence of the Lockerbie Case. The fragment “unambiguously” linked Libya to the bombing of Pan Am 103.

As Richard Marquise — the FBI Agent who led the US side of the investigation — famously said:  “Without PT/35(b), there would have been no indictment.”

Today, we KNOW that PT/35(b) could not have been part of the MST-13 timers delivered to Libya.

Yet, the SCCRC rejected that this ground may have caused a miscarriage of justice. How can this be possibly justified when the science clearly tells the opposite?

The SCCRC only relied on legal arguments — not science — to exclude this fundamental ground.

The applicants’ submissions under this overall ground were three-fold and were as follows:

(1) The Crown failed to disclose to the defence information about the difference in metallurgy between the timer fragment PT/35(b), recovered during the ground search, and the ‘control’ circuit boards (fragment PT/35(b) being, the trial court concluded, part of the MEBO-produced MST-13 timer used to trigger the bomb);

(2) There is fresh evidence about the difference in metallurgy between PT/35(b) and the control circuit boards which casts serious doubt on the trial court’s conclusion that PT/35(b) was part of the MEBO-produced MST-13 timer; and

(3) If there has not been a miscarriage of justice by reason of undisclosed information or fresh evidence relating to the metallurgy issue, the defence team’s decision not to investigate it amounted to a failure to present Mr Megrahi’s defence.

The Commission decided that the Crown did not fail to disclose the information in question to the defence. It decided also that the applicants have not provided a reasonable explanation as to why the fresh evidence concerning the metallurgy issue was not led at the trial. In other words, it did not believe that submissions (1) and (2) are arguable.

As regards submission (3), the conduct of an accused’s defence may be said to amount to a miscarriage of justice only where it has deprived him of a fair trial; a fair trial is denied to an accused where his defence was not presented to the court because counsel either disregarded his instructions or conducted the defence in a way in which no competent counsel could reasonably have conducted it.

The Commission decided that the decision by the defence team to proceed without investigating the metallurgy issue did not mean that Mr Megrahi’s defence was not presented to the court.

This is surely the most despicable legal trick ever produced to oppose Justice.

And, to add insult to injury, the SCCRC concludes:

“In any event, the Commission was not persuaded that the evidence obtained post-trial about the metallurgy of the control circuit boards called into question the trial court’s conclusion that PT/35(b) was part of the MEBO-produced MST-13 timer used to trigger the bomb.”

Abandon hope all ye who enter here

The grounds for an appeal arising from a reference to the High Court must relate to one or more of the reasons for making the reference contained in the Commission’s statement of reasons.

Megrahi’s legal team can appeal on the basis that a conviction was based upon a verdict that no reasonable jury could have returned, and on the ground of “non-disclosure”. [Grounds 2 & 4]

Can Megrahi’s legal team appeal on additional grounds? Let us first read the law.

(4A)  The grounds for an appeal arising from a reference to the High Court under section 194B of this Act must relate to one or more of the reasons for making the reference contained in the Commission’s statement of reasons.

(4B)  Despite subsection (4A), the High Court may, if it considers it is in the interests of justice to do so, grant leave for the appellant to found the appeal on additional grounds.

So yes, the law does not inhibit Mr Anwar to try to appeal on additional grounds. But I would not bet on the High Court considering it is in the interests of justice…

Why it matters?

The decision of the SCCRC to allow a very limited appeal of the Lockerbie Case is a textbook example of censorship as it is conducted in the UK, and Western countries in general.

As Chomsky has long observed: “The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum….”

Indeed… Mr. and Mrs. Smith are now allowed to question the conclusion of the judges, but only as long as they do not step over the bounds defined by the State.

And the message is very clear: Megrahi may or may not be the purchaser of the clothes, but Libya is responsible for Lockerbie; End of the story.

And even within the limited framework defined by the SCCRC, I expect this pseudo appeal to be no more than a diabolic trap.  Please, read carefully….

“The Commission, as part of the current review, obtained new information which, if believed, points at Libya, and Mr Megrahi as an operative in 1988 for that state, as being the culprits in the bombing of PA 103.

The Commission considered, however, that the foregoing material did not entitle the Commission to establish a compelling and unanswerable case indicating that Mr Megrahi is guilty.

As matters presently stand, the Commission was unable either to assess the nature or the circumstances under which this information was obtained or to form any conclusion about the credibility or reliability of the information.

It may be that, if such matters are able to be properly considered in the future in a court of law, appropriate conclusions could be drawn about this new information.”

PS — Oliver Cromwell died in 1658. His body was exhumed in 1661 to be hanged in chains. Later, he was decapitated and his head was displayed on a pole outside Westminster Hall until 1685. There is a pole waiting for Megrahi’s head.

TIMELINE

On July 4 2017, the Scottish Criminal Cases Review Commission confirmed that it has received a new application to review the conviction in the case of Abdelbaset Ali Mohmed Al-Megrahi.

On May 3 2018, SCCRC chief executive Gerard Sinclair  stated that “the (SCCRC) commission has decided that it is in the interests of justice to accept the current application for a full review of his conviction.”

On March 11 2020, the Scottish Criminal Cases Review Commission [SCCRC] decided to refer the Lockerbie case back to the High Court of Justiciary for determination.

In other words, it took the “Good SCCRC Investigators” 2 years, 8 months, and 7 days to confirm two of the six grounds their predecessors had already validated 13 years ago.

Let me put this in numbers. After 981 days, this crack team delivered a final report of 419 pages. That is about one page per person every 20 days. Working hard, or hardly working?

The Usual Suspects (1995) — The Greatest Trick Quote

“The greatest trick the Devil ever pulled was convincing the world he didn’t exist.”

REFERENCES

Quote — “N’oubliez jamais, quand vous entendrez vanter le progrès des lumières,
que la plus belle des ruses du Diable est de vous persuader qu’il n’existe pas!”

Application on behalf of Mr Abdelbaset Ali Mohmed Al Megrahi — SCCRC (March 11 2020)

Lockerbie bomber conviction ‘may have been miscarriage of justice’ — The Guardian

Criminal Procedure — References to High Court

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Lockerbie — Diabolical Endgame [Part I : SCCRC & The Grounds of Appeal]

Lockerbie — Diabolical Endgame — Part I : SCCRC & The Grounds of Appeal [Kenny MacAskill : New trial will not provide closure on Lockerbie.]

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