The UN Observer to the Lockerbie trial proceedings has today (Monday) written to the UK Foreign Secretary David Miliband to point out that the suppression of evidence using Public Interest Immunity certificates is contrary to precedent set by the International Criminal Court.

PII certificates were issued to prevent the defence having sight of documents during the course of the second appeal, which are not understood to be directly relevant to the cause of the downing of Pan Am 103, but which the Crown have argued would damage international relations if disclosed.

"The Appeal cannot go ahead if the Government of the United Kingdom, through the PII certificate issued by you, denies the Defence the right (also guaranteed under the European Convention on Human Rights) to have access to a document which is in the possession of the Prosecution," Kochler tells Miliband.

"How can there be equality of arms in such a situation? How can the independence of the judiciary be upheld if the executive power
interferes into the appeal process in such a way? "

Kochler points out the earlier ICC case of Thomas Lubanga Dyilo, in which he says the public interest argument "is excluded where its application would deny to the accused the opportunity to establish his or her innocence."

In addition, Kochler rebukes the Foreign Secretary for the inaccuracy on the Foreign and Commonwealth Office website, which does not state that Megrahi's co-accused, Lham Khalifa Fhimah was acquitted of involvement. The site said the verdict against Fhimah was the more circumspect "not proven".

"There is no justice without truth – and there can be no truth if evidence is withheld in a criminal case by governmental decree," he added. 

Kochler's letter can be read in full below.

Vienna, 21 July 2008

Dear Mr Miliband!

I regret having to contact you again in the Lockerbie case – a matter that should have been resolved by now (almost twenty years after the tragic event) on the basis of the rule of law.

Allow me, first, to refer to the Libya page on the web site of the Foreign & Commonwealth Office. The section related to the midair explosion of Pan Am flight 103 over Lockerbie states, inter alia, that “Al-Megrahi was found guilty and Fhimah not proven [sic!].”

While the information concerning Mr. Al-Megrahi is correct, the information concerning Mr. Fhimah is wrong. The accurate words in the case of the verdict reached on Mr. Fhimah would be “not guilty.” It is worthy to note that the sentence on the FCO web site is also semantically flawed. A person can be found “guilty” or “not guilty”, but not “proven” or “not proven”. Only an allegation/accusation, not a person, can be found “proven” or “not proven”.

The sentence on the web site can easily be corrected if the word “proven” is replaced by the word “guilty”. I trust that, for the sake of truth, the Foreign & Commonwealth Office will correct this mistake. The accurate information about the verdict in Mr. Fhimah’s case is to be found in the official transcript of the High Court of Justiciary at Kamp van Zeist (record of Day 86, January 31, 2001, pages 10235 to 10236).

As international observer, appointed by the United Nations, at the Scottish Court in the Netherlands I am also concerned about the Public Interest Immunity (PII) certificate which has been issued by you in connection with the new Appeal of the convicted Libyan national. Withholding of evidence from the Defence was one of the reasons why the Scottish Criminal Cases Review Commission has referred Mr. Al-Megrahi’s case back to the High Court of Justiciary.

The Appeal cannot go ahead if the Government of the United Kingdom, through the PII certificate issued by you, denies the Defence the right (also guaranteed under the European Convention on Human Rights) to have access to a document which is in the possession of the Prosecution. How can there be equality of arms in such a situation? How can the independence of the judiciary be upheld if the executive power interferes into the appeal process in such a way?

In that regard, I have the honour to draw your attention to the recent decision of Trial Chamber I of the International Criminal Court (ICC) to stay the proceedings in the case of the Prosecutor v. Thomas Lubanga Dyilo because of the non-disclosure of exculpatory material (“Decision on the consequences of non-disclosure of exculpatory materials …” of 13 June 2008). The judges stated that;

"The Chamber has unhesitatingly concluded that the right to a fair trial – which is without doubt a fundamental right – includes an entitlement to disclosure of exculpatory material“ and referred to an ICTY ruling according to which „the public interest [...] is excluded where its application would deny to the accused the opportunity to establish his or her innocence“. (In a further decision, dated 2 July 2008, Trial Chamber I of the ICC ordered the release of Mr. Dyilo.)

I sincerely hope that the British Government will not ignore the basic principle of fairness as expressed in these rulings of international criminal courts and will not insist on a measure that would, if upheld, effectively prevent the Scottish High Court of Justiciary to go ahead with Mr. Al-Megrahi’s Appeal. It is fair to expect that the standards of criminal justice adhered to in the United Kingdom (and within the justice system of Scotland, for that matter) should not be lower than those of international criminal courts and should definitely be in conformity with the requirements of Art. 6 of the European Human Rights Convention.

Should further appeal proceedings become impossible because of the forced non-disclosure of evidence to the Defence, not only myself, who followed the proceedings in the Netherlands as international observer, but the relatives of the victims of the Lockerbie tragedy will be prevented from any further chance of knowing the truth about those responsible for the midair explosion of Pan Am
flight 103 over Lockerbie. Many who, like myself, initially trusted in the integrity of the judicial process under Scots law, will feel betrayed.

There is no justice without truth – and there can be no truth if evidence is withheld in a criminal case by governmental decree.

Please accept, Mr Miliband, the assurances of my highest consideration.