[I am grateful to Dr Jim Swire for this account of a meeting that he had in Dunblane on 2 November 2010 with the Moderator of the General Assembly of the Church of Scotland (Right Rev John Christie), the Roman Catholic Archbishop of St Andrews and Edinburgh (Cardinal Keith O'Brien) and the Primus of the Scottish Episcopal Church (Most Rev David Chillingworth, Bishop of St Andrews, Dunkeld and Dunblane).]
This meeting was convened by Cardinal O'Brien, following his correspondence with Dr Jim Swire, which in turn had arisen in response to an article published by Cardinal O'Brien in Scotland on Sunday on 8th August 2010. This article had contrasted the position of the judicial systems and punishments of the United Sates with those of Scotland, including the provision for compassion, and discussed their respective relationships to justice and to revenge. The meeting also followed the presentation by Justice for Megrahi (JFM) to the Public Petitions Committee of the Holyrood Parliament, which the Cardinal had attended. My apologies (...) for so long a review of our meeting.
It is the belief of JFM that the verdict against Mr Megrahi and the way in which the court at Zeist reached that verdict are insecure. In addition material released since the verdict by elements of his defence team, and by a UN official observer of the trial (Prof Hans Koechler), together with the limited findings of the SCCRC thus far made public, profoundly undermine confidence that justice has been delivered in this case. Since there were also aspects of the preparation of evidence for use in the court which might have been influenced by the political considerations of states outwith Scotland, the need to review the impartiality of our justice system in this case is greatly augmented.
JFM had therefore mounted the following petition to the Holyrood 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.
This commentary below represents only Dr Jim Swire’s personal comments concerning this meeting, which he felt very privileged to have attended. The meeting was chiefly concerned with Dr Swire attempting to define how he sees the current position over the Lockerbie trial, the trial’s origins and some of the events that followed it. He personally is convinced that the SCCRC were right to announce that they believed this case might have been a miscarriage of justice
Based on his own experiences of this case, Dr Swire himself is satisfied that Mr Megrahi could not have been involved as charged: this differs from the position of JFM, but of course we share the imperative that the whole trial process must be re-examined if we are to be sure what justice for Megrahi should be. Therefore this account is written partly as a personal assessment of the situation, and in the first person.
I hope that each of you three Church leaders may feel able to publish some comment upon the situation discussed here when you have had the opportunity to review the implications with your respective churches, and that whatever these comments may be, they may be made available to your respective congregations, and as widely as possible. Of course you are also at liberty to use all or any representative part of this account in any way you wish, and it is also my hope that you will not object to the publication of this account on The Lockerbie Case blog of Professor Robert Black. Over the question of how justice should serve our community, I believe that this case is best exposed to public view by any possible means, for its implications should concern all of us in Scotland.
The establishment and maintenance of an impartial justice system is fundamental to the health of any civilised community. If the confidence of a community in the impartiality of its justice system is undermined, or indeed is even significantly suspected of having been undermined, the entire community is disadvantaged. Justice must not only be done, it must be seen to be done.
This disaster arose when a Boeing 747 containing 259 passengers and crew and baggage, all loaded at Heathrow and destined for New York, crossed into Scottish airspace over the Solway Firth, at about 7.02 pm on the 21st of December 1988 and exploded over Lockerbie about one minute later with the loss of 270 innocent lives, 11 of them among the people of Lockerbie below. There are therefore immediate questions over where the limits of Scottish legal authority should be set, since the loading of the bomb had occurred in London’s Heathrow airport. Those questions in turn bear upon matters relevant to the present state of devolution between Scotland and England. They also bear inexorably upon aspects of the accumulation and handling of evidence and forensic artefacts for use in the trial. For instance, the UK forensics officers appointed to this Scottish case by UK the authorities had already been very severely criticised by a Lord Chief Justice of England for the unreliability of their evidence in preceding IRA based murder trials in England.
Both the Lockerbie Fatal Accident Inquiry and the Zeist trial were held under Scots law, but their findings reach far over the border and beyond even European boundaries, as does the assembly of evidence and witnesses for their use. The greater the importance then of examining whether our legal performance was satisfactory, and the greater the importance that we ourselves ordain re-examination of our justice system, rather than allowing any entity outwith Scotland to do so. Then if errors are found we can at least be seen to be addressing them for ourselves.
However, within Scotland herself these factors themselves are also complex, for the relatively small enclaves of Scottish law and investigative police must act, and be seen to act objectively and not in any attempt at self-justification. We must not lose sight of one major criticism of the Zeist trial, namely that failures of the Crown Office as prosecuting authority in the sharing of material with the defence, was one of the major factors that seemed to make the trial unacceptable as a fair arena in which to try the case. We must also be aware that some of those directly involved in many of the processes required for this court to function, from the Lord Advocate of the day downwards, have by now evolved into major players in the Scottish legal system. The same applies in the police forces involved. The revelations from the McKie fingerprint case give great cause for concern about possible attempts at self-justification from both the legal and police communities in Scotland.
It is of paramount importance that any inquiry is seen to be outside the circles of individual and corporate influence within Scotland which might otherwise be accused of having invalidated the objectivity of such an inquiry. Meeting this requirement might mean the appointment by the Scottish Government of a chairman of inquiry of acknowledged impartiality from outside Scotland. As we shall see there are plenty of materials and personnel within Scotland upon which a meaningful inquiry could be based.
Back in 1989, the UK relatives of the dead (‘UK Families-Flight 103’) were soon in possession of a number of prior warnings which had been received by the British Government well before the disaster, but their requests to the Westminster Government to set up an immediate inquiry after protection of the aircraft had all too obviously failed, were ignored. Lady Thatcher, Prime Minister at the time, refused even to meet to discuss an inquiry, and the pattern of rejecting any objective inquiry has been followed by every British Prime Minister since.
As was mandatory under Scots law, since the aircraft crew had ‘perished in their place of work’, a Fatal Accident Inquiry (FAI) had been set up at Dumfries. In retrospect it was unfortunate, yet entirely proper, that (the late) Sheriff Principal Mowat who led that hearing instructed the FAI that it was to accept that ‘the bomb had arrived at Heathrow from Frankfurt'. This was to be the limit of the FAI’s remit in examining the origins of the disaster, and was in line with the current state of the police investigation at that time, which of course had to be protected, in view of hoped for impending prosecutions.
In spite of this arbitrary acceptance of whence the bomb 'must' have come, the FAI did however tell us relatives that the aircraft had been under the host state protection of the UK at all relevant times on the ground at Heathrow, and that the disaster had been preventable. It is very unfortunate that the question of how the bomb actually got into Heathrow and onto the plane is now seen by many observers as being misrepresented at Zeist. If that turns out to be the case, then a main instruction for the FAI would appear to have been unjustified itself, requiring review of some aspects of the FAI hearings. Much of the work of the FAI was centred upon how passenger baggage was handled within Heathrow airport, and upon the performance of the UK Department of Transport in securing baggage there. Should it emerge in an inquiry or further appeal that the bomb may not have been introduced via the Frankfurt flight after all, but through the Heathrow break-in (vide infra) then it would be necessary to re-examine the question of UK failure to prevent the tragedy in terms of Heathrow perimeter security, rather than in terms of internal baggage handling methods at the airport. The task of a Scottish FAI is to determine the factors contributing to the death(s)
There is well informed criticism now of the whole concept of the bomb having come from Malta. Worse, information concerning a break-in to highly relevant parts of Heathrow during the small hours of the night before Lockerbie was withheld from the Zeist trial court until after the verdict had been reached. How this came about would have to be included in any meaningful inquiry into the probity of the trial, and would also have implications for the findings of the FAI, specifically in terms of the UK's responsibility to protect flights loading at Heathrow airport. In this respect the interests of 'UK Families-Flight 103' are broader than the petition by JFM which centres specifically upon the Zeist verdict. The people of Scotland however should also have an interest as to how this aircraft with its loaded bomb came to enter Scottish airspace that night, and rain death upon 11 of them in their homes in Lockerbie. Since the role of the protection offered to Pan Am 103 at Heathrow were addressed by the Scottish FAI, they must also fall within the remit of a Scottish investigation of the disaster.
Told by a former British Foreign Secretary that there was excellent evidence against the accused and none against any other country than Libya, by the time I entered the Zeist court I was expecting to see two of the murderers brought to justice.
Meanwhile we, in 'UK Families-Flight 103', strengthened by the findings of Scotland’s FAI that the disaster had been preventable, are still waiting for explanations from the Westminster Government as to why they failed to protect the lives of our families. The bomb which crossed the Scottish border that night in the belly of the 747 appeared to conform to those described in such detail in the warnings received in good time by the UK Government beforehand. This issue of the failure of protection at Heathrow may lie outwith Scottish jurisdiction, but the performance and findings of the two Scottish Court proceedings at Dumfries and Zeist lie entirely within Scotland’s sphere of responsibility, the latter being central to the question of whether Mr Megrahi’s conviction was or was not justified. JFM’s petition therefore centres upon the Zeist court and its findings.
Following some 18 months of official investigation immediately after the disaster, the finger seemed to point to Iran, seeking revenge, by using a Syrian terror group as mercenaries. having lost an airbus containing some 290 individuals shot down by a US missile cruiser six months before Lockerbie, the captain of the cruiser being presented with a medal following his return to the USA.
Then suddenly in late 1991 indictments were issued simultaneously in Edinburgh and Washington against two of Libya’s citizens.
There followed for the relatives years of hard work attempting to persuade Libya to allow the two to be tried under Scots law. These efforts were strongly supported by the then Professor of Scots at the University of Edinburgh, Robert Black QC and by Nelson Mandela, and many others, but involved multiple trips to talk to Colonel Gaddafi. The first of these was made by myself alone and in great fear, but two others were made jointly with Professor Black, who was himself the originator of the ‘Scottish court in a neutral country' concept.
Together with one other UK relative, I watched the whole of the evidence unfold at Zeist, and though only a layman, to my amazement as the case unfolded it seemed to me that the evidence was failing to support the involvement of either of the accused in the atrocity, let alone the island of Malta as the point of origin of the bomb. The second Libyan suspect, Mr Khalifa Fahima, was accused of conspiring with Mr Megrahi to cause the disaster but was found Not Guilty: a remarkable finding in view of the availability of the Scottish verdict of Not Proven.
Then came the evidence of a German forensic officer who explained to the court the nature of bombs found in the hands of a terror group, but not all confiscated, in Germany, two months before Lockerbie. He explained that the bombs were of Syrian provenance, from an Iranian linked terror group, the PFLP-GC in Damascus. He also carefully explained how these bombs, specifically designed to destroy aircraft in flight, were capable of introduction to an airport well in advance of their actual use. He explained too that put into an aircraft they would always explode between 35 and 40 minutes after take-off, by sensing the drop in air pressure, but that they were inert on the ground indefinitely. They were not adjustable. They came predicated always to explode 35-40 minutes after take-off.
Yet these devices could not have arrived by air from Malta as they would have exploded en route. From that point on, and knowing that the flight time for the Lockerbie aircraft had been 38 minutes, I found it hard to believe that Mr Megrahi, allegedly using a sophisticated digital timer from Malta, had risked his device passing through an Air Malta flight, changing planes at Frankfurt and then changing planes again at Heathrow, only to have it explode 38 minutes after take-off from Heathrow as the Lockerbie flight did. Why would he not set it to explode over mid Atlantic since the timing of the device he was alleged to have used was fully under his control? Why risk this devious route those two changes of airplane and so short a flight time out of Heathrow?
But the FAI had told us to assume that the bomb had been flown in from Frankfurt. What were the chances of a simple time-bomb from Malta happening to explode at just the same time after take-off from Heathrow as one of those described by the German forensic officer to the court would have been obligated to do? The hearings seemed permeated with failures to assuage reasonable doubt: a prerequisite supposedly for reaching a guilty verdict under Scots criminal law
There were great difficulties particularly surrounding the evidence given by Toni Gauci, a Maltese shopkeeper alleged to have sold a tranche of clothing later found at the crash site to Mr Megrahi, who he could only say ‘looked a lot like the buyer of the clothes’. The evidence of identification never looked to be of the standard required to incriminate the real perpetrator, yet it was the only supposedly secure proof of Mr Megrahi’s involvement in Malta, there being no evidence to lead as to how he was supposed to have breached security at Luqa airport on the island. Such difficulties and many others will be central to any inquiry into this trial.
It is significant that Professor Black has repeatedly stated that the events and evidence heard in the Zeist trial court itself present difficulties which should have ruled out a guilty verdict under Scottish criminal law, even without reference to events since the verdict was reached. Unlike my lay status, his is a powerful persuasive and professional voice claiming the need for the whole court process to be reviewed if we are to be certain whether justice was delivered for Mr Megrahi or not. Only a few others were prepared openly to express their doubts at first, but re-examination of the evidence and trial transcripts has increased doubts over the validity of the verdict for a number of highly qualified lawyers since. Gareth Peirce, one of Britain’s most respected human rights lawyers is an excellent example of this. Her article in the London Review of Books 'The framing of al-Megrahi' is well worth reading.
After three years of study the Scottish Criminal Case Review Commission (SCCRC) publicly stated that the trial might be a miscarriage of justice, massively increasing the doubts in the minds of many Scots both within and without our legal community.
Yet the current publicly expressed position of the Scottish Justice Minister and of our First Minister is that they have no doubts concerning the verdict. It is not apparent why they should be considered a more reliable source than the SCCRC, whose special task it is to decide such issues, and which spent so long in careful professional examination of this case.
I have made clear that the content of the Zeist court proceedings on their own are widely thought sufficient to require re-examination of the whole court process. However immediately after the verdict was reached, a night security guard complained to the Zeist defence team that his discovery of a break-in at Heathrow airport during the night preceding Lockerbie had been ignored by the court. It transpired that his discovery had been promptly reported to the Heathrow authorities, and that in January 1989 the security guard himself had been interviewed by the Metropolitan Police Special branch. Though the break-in had occurred close to where the bags for the Lockerbie flight were assembled and to where the facilities used by Iran Air were sited, neither the break-in itself nor the evidence from the interview of the night security guard were made known to the Zeist court, until after the verdict had been reached.
Although this startling new information seemed to fit perfectly as a route through which one of the Syrian automatic air pressure sensitive bombs described above might have been introduced, it did not dislodge the verdict. Paramount among reasons why this was so, revolved round the way that Mr Megrahi’s defence had approached the first appeal. The performance of Mr Megrahi’s defence team at Zeist must of course be re-evaluated by any inquiry.
The emergence of this evidence seemed to fit as if a vital piece of a jig saw into my own belief derived from the German forensic evidence heard in the Zeist court hearings themselves, that one of the Syrian automatic devices was most probably used, with their inevitable 35-40 minute flight time. Here at last was evidence of a credible route for the introduction of one of these devices to Heathrow. A reassuringly simple and satisfying alternative to the weird route allegedly chosen by Mr Megrahi and his bomb from Malta, accepted by the Zeist court.
Surely this was a ‘reasonable doubt’ contradicting the verdict, since if true, Mr Megrahi could not have been involved, having been shown in the court evidence to have been on Malta during the night of the break-in at Heathrow.
At this time there is no known explanation as to why this potentially vital information lay concealed from the trial court. It could be that the Met did not pass it on to the Scots; it could be that the investigating Scottish police chose to ignore it, but at least the Crown office has assured me in writing that they did not know of it prior to the verdict being reached. Here is another interface between UK responsibility and Scottish responsibility. We need to know where responsibility for this amazing lacuna in the main trial court's evidence arose, in pursuit of assessment of the competence or otherwise of the Scottish police investigation, for this investigation was central to the sufficiency of evidence led at Zeist.
I will mention one other development since the trial ended. Following the withdrawal of his appeal, Mr Megrahi’s defence team published a substantial amount of information which presumably would have been among that to be used had the appeal continued. This was not the work of some elusive conspiracy theorist, nor did it appear in one of the less well supported pages of Wikipedia. It was placed on the net by members of Mr Megrahi’s Scottish defence team, all no doubt available to any Scottish inquiry. Among their revelations was the information that the above mentioned Maltese shopkeeper Toni Gauci was observed by one of the investigating Scottish police officers, Harry Bell, to be showing increasing signs of desire to get his hands on a substantial sum in US dollars, to be provided from America ‘if he gave evidence leading to the conviction' of Mr Megrahi. The diary entry was made long before Toni Gauci did come to court to give his evidence. Evidence from other sources suggests that the amount was to be $2,000,000. That would be a life-changing fortune to the keeper of a small Maltese clothing store. The money appears to have come from Washington, from the US ‘Rewards for Justice’ programme, which listed Mr Megrahi’s name among those brought to ‘justice’ by the disbursements of its funds.
This policeman and his diary (which was not seen by the Zeist court, although its existence was known to it) should also be available for a suitably empowered inquiry to examine.
It seems to me therefore that there is no shortage of aspects to this case which lie within reach of an appropriately empowered Scottish inquiry. It is not the position of JFM that the verdict against Mr Megrahi was wrong, simply that it is so set about with legitimate and accessible doubt that it must now be re-examined, if we in Scotland are to retain confidence in our judicial system and its impartiality, and if we are to be sure that Mr Megrahi has received justice at our hands.
None of the above, bears upon the decision of our Justice Secretary Kenny MacAskill to allow Mr Megrahi’s release on compassionate grounds in 2009. I was privileged to meet with Kenny before he made his decision and urged him to use the established precedent in Scots law to allow the desperately sick man home. It did not even require the withdrawal of his appeal which we hoped would fully review the verdict. I believe Kenny’s decision was a brave one, and of course it has brought vile criticism upon him from the USA, where there is expression of a hope that Mr Megrahi will quickly die and even preferably in pain. These are voices baying for vengeance.
Personally I believe we should be proud of Kenny’s decision and of the capacity of our legal system to exhibit compassion. Speaking as a doctor for a moment, I would say that the relief of the misery of being segregated from his family and desperately sick in an alien prison cell, all because of a horrible slaughter for which he may bear no responsibility, was the major reason for his much prolonged survival thus far in Tripoli. That gave me the joy of meeting him once more with his loving family in his hospital room in Tripoli last month.
You will remember that I personally am satisfied that Mr Megrahi was simply not involved, and therefore what might have been a supremely difficult moment to test the Christian obligation to try to love one’s enemies, was no problem. I have nothing for which to forgive him. Indeed, the roles are reversed. I campaigned for several years to have this man and his fellow Libyan submit to Scottish law as being a fair system.
Mr Megrahi is a devout Muslim. Yet in his cell just before Christmas 2008 he bought a Christmas card from the prison shop and gave it to me: on it he had written “To doctor Swire and family, please pray for me and my family”. Was that the act of a mass murderer? Should either of us hate the other? I don't think so, but I do believe we should investigate whether or not we in Scotland provided justice for Mr Megrahi at Zeist. I would like to think that we could all pray for him and his family, but for those among us who still believe he may be guilty, that prayer would be so much easier if review of this trial showed him to have been innocent all along. So I think we may pray that justice may be done here and that it be seen to be done by us, the people of Scotland, whom that justice system must faithfully serve in the future.