The Lockerbie affair and Scottish society

[This is the title of the 2011 Saltire Society Lecture delivered at the Edinburgh International Book Festival on 28 August by Scotland's most distinguished living novelist, James Robertson. What follows is the text of the lecture.]

Since it is because of my occupation as a writer of fiction that I am giving this talk, why do I wish to devote it to something so clearly and tragically real as the Lockerbie bombing and its aftermath? There are two reasons. First, I believe that fiction and reality are by no means mutually exclusive: through fiction, or literature more generally, there is sometimes the possibility of reaching for truths about the human condition that cannot readily be grasped as we lead our daily lives, either because our lives are too busy or too difficult, or because other people and powers keep those truths from us. Second, this session is sponsored by the Saltire Society, which, as its website says, was founded 75 years ago ‘to encourage everything that might improve the quality of life in Scotland’. While the Saltire Society’s principal concern over those years has been with the cultural life of the nation, ‘culture’ is a very big concept, and I don’t think it is possible, or indeed desirable, to treat such things as architecture, arts and crafts, history, music, science and literature as if they are separate and distinct from the political, legal and social framework of the community in which they happen. The health and wellbeing of a community, of a country, of a nation – and Scotland is each and all of these – can be measured in many different ways, but if those of us engaged in ‘culture’ shrink from engaging with politics and the law, then neither our politics, nor our law, nor our culture in the widest sense, will be honest or progressive, or in tune with the Saltire Society’s aim of improving the quality of Scottish life. Quite the reverse: without that engagement, at a time in our history when there is so much public rhetoric about Scots taking more responsibility for running our own affairs – an aim I completely support – we run the risk of suggesting to our lawmakers and elected leaders that we hand them that responsibility without much caring what they do with it. I for one care very much.

With regard to the Lockerbie affair, many serious questions have been asked over the years, honestly, reasonably and intelligently by many different people, some of them directly affected by the event, some not – questions about the conduct of the investigation, about the resulting trial, about the conviction of one of the two accused, and about the subsequent release from prison of that same man. Where they remain unanswered, or have been answered in wholly unsatisfactory ways by the authorities, these questions hang like spectral shadows over the future of our country. If we cannot feel confident that the biggest criminal trial in Scottish history achieved a just, and convincingly just, outcome, then not only do those whose loved ones were murdered go on suffering, but Scotland as a whole suffers.

When I decided, back in March, to make Lockerbie and its continuing reverberations the subject of this session, I was conscious that the background against which I would be speaking might be very different to that which then existed. So indeed it has turned out. It was possible, for example, that the man convicted of the bombing of Pan Am Flight 103, Abdelbaset Ali Mohmed Al-Megrahi, who as we all know was released from prison in August 2009 on compassionate grounds, might have died from the prostate cancer from which he was suffering. It was possible that Colonel Gaddafi would have been removed from power by the rebellion in Libya, and that he too might be dead. It seemed highly probable that NATO – or elements within NATO – would not be much dismayed if its bombing campaign in Libya resulted in eliminating not only Gaddafi but also Megrahi, neither of whom would then be able to dispute what might be termed ‘the conventional wisdom’ on Lockerbie, as it has been maintained since Mr Megrahi’s conviction in January 2001. Mr Megrahi appears to have survived the NATO bombs, but it remains to be seen whether he will escape being snatched by, or handed over to, the Americans, some of whom are keen to set an example to their new friends in Libya of how to dispense justice by retrying a convicted man, changing the sentence he received – quite possibly to a lethal one – and overriding the justice system of another country (Scotland) because they don’t like its perfectly legal and properly conducted processes and outcomes. God help us all and not only Mr Megrahi if the new Libyan administration and the Scottish Government do not resist such moves. There is precious little, in statements made by William Hague, David Cameron and Nick Clegg, to indicate that the UK Government will object, although I am gratified to read statements from the National Transitional Council in Libya that they have no intention of handing Mr Megrahi over to anybody.

Other changes in circumstance between March and now were also possible: for example, some specific evidence might have been provided by Mustafa Abdul Jalil, the former Libyan Justice Minister, now chair of the National Transitional Council, to support his claim, made in February, that he had proof that Gaddafi personally ordered the bombing. What have we heard from Mr Jalil since about Lockerbie? As far as I am aware, absolutely nothing of any substance. Or we might have heard from Moussa Muhammad Koussa, who was Libya’s Foreign Minister until he defected to the UK in March. Mr Koussa was formerly Head of Libyan Intelligence from 1994 to 2009,and before that worked for the Bureau for External Security, the Mathaba, which has been accused of responsibility for the bombing itself. If Libya had anything to do with Lockerbie, Mr Koussa is the man who would know. He was duly interviewed by British intelligence and the Scottish police, then allowed to leave the UK for Qatar. Had he told the police anything that incriminated either himself or other Libyans, or provided more details to support the conviction of Mr Megrahi, it is hard to imagine that the British Government would not have been eager to tell us. But neither they nor the police have said anything. Who, one might ask, is the more cynical? Those of us who are not surprised by this silence, or those who maintain it while also maintaining that they – to recycle the oft-used phrase – ‘do not doubt the safety of Megrahi’s conviction’?

We have heard from Guma el-Gamaty, the UK co-ordinator for the National Transitional Council, who two weeks ago said that Mr Megrahi’s release by the Scottish Government had ‘handed a political and diplomatic victory’ to the Gaddafi regime. But his statement was essentially about distancing the NTC from the regime’s past activities, and it studiously avoided admitting Libyan responsibility for Lockerbie. If Megrahi and his co-accused were involved, Guma el-Gamaty said, they were ‘very, very small fish in the chain’. He criticised previous British Governments’ dealings with Gaddafi and pointed an accusing finger at Moussa Koussa. None of this reveals anything new about Lockerbie.

It might also have been posited back in March that the political landscape of Scotland would change after the parliamentary election in May. This of course did happen, dramatically so, and the result – an SNP government with an overall majority – does have a bearing on the continuing significance of the Lockerbie affair. Before the SNP came to power in 2007 as a minority administration, it was, unlike the Conservatives and Labour, a party with clean hands as far as Lockerbie was concerned, largely because it had not previously been in government. Many of us hoped then that this would enable a fresh appraisal of the case to take place, especially as, in June 2007, the Scottish Criminal Cases Review Commission announced its decision to refer Mr Megrahi’s case back to the High Court for a second appeal because it concluded that a miscarriage of justice could have occurred at his trial. But for the next two years legal proceedings dragged on, and the appeal remained unheard. Mr Megrahi meanwhile, in September 2008, was diagnosed with cancer. By the summer of 2009 his illness was considered by medical advisers to have progressed so far that the Scottish Justice Secretary Kenny MacAskill authorised his release from prison on compassionate grounds. Mr Megrahi dropped his second appeal just before he was released, although there was no legal requirement for him to do so. The political storm that followed his release and his return to Libya completely diverted attention from the question, should he have been in prison in the first place?

It appears to me that, whether one approved or disapproved of Mr MacAskill’s decision, the Scottish Government acted absolutely according to protocol and legal process as far as prisoner release on compassionate grounds was concerned. The howls of outrage from the then Labour Government have since been revealed to be, largely, howls of hypocrisy and dishonesty. Nevertheless, the Scottish Government repeatedly stated at the time that it did not doubt the safety of Mr Megrahi’s conviction. Given the absolute consistency with which it has maintained this position, the exercise of the Justice Secretary’s discretionary powers to release him was and continues to be highly controversial. Arguably, though, one could hardly have expected the Government to express doubts about the conviction. Had it done so, it – the executive component of our political system – would effectively have been challenging the efficacy and independence of the judicial component.

With the May election result, however, we entered new political territory. The SNP has an overall majority, and will presumably be in power till 2016. Within weeks of the election, a furious row broke out over the relationship between the Scottish courts and the Supreme Court in London. The Scottish Government objected to the Supreme Court’s ruling that in a criminal case heard at the High Court in Scotland the human rights of the accused, as defined by the European Convention, had been infringed by the Crown’s failure to disclose vital evidence to the defence. On this occasion the First Minister and Justice Secretary showed no reluctance at all in expressing their opinions about the efficacy and independence of the judiciary. They seem to have objected to the Supreme Court’s decision not because they disagreed with the idea of accused persons having human rights, but because the Supreme Court was based in London rather than Strasbourg. There may have been some validity in their arguments, but the way those arguments were made did not indicate much respect for the principle of the separation of executive from judicial powers. It indicated instead a worrying complacency that everything in the Scottish judicial system was working perfectly well, and that any suggestion that it was not, even from two of the most experienced Scottish legal figures of their generation, Lord Hope and Lord Rodger, was unwelcome.

There was a sense, nevertheless, that the Scottish political context for discussing the correctness of the Lockerbie judgment might have shifted. But has it? One of Alex Salmond’s pre-election pledges was that, recognising the widespread concerns about Mr Megrahi’s case, his government if re-elected would bring forward primary legislation to allow the SCCRC to publish its findings without the consent of the various interested parties who had supplied information to the Commission. Robert Black, Emeritus Professor of Scots Law at Edinburgh University, architect of the Camp Zeist trial in the Netherlands and a persistent critic of the outcome of that trial, has argued that the laborious process of introducing primary legislation through Parliament is not necessary: ‘It can, and should be done by Statutory Instrument (secondary legislation),’ Professor Black has said, ‘just as the Scottish Government did earlier when it permitted publication but only if those who supplied the information to the SCCRC consented. An unqualified permission to publish can be given through exactly the same legal mechanism as the earlier qualified permission.’ But, this aside, even were such legislation to be passed, what would change? It has been stated several times by the Government that the SCCRC’s ability to publish its findings would still be subject to ‘legal restrictions applying to the Commission such as data protection, the convention rights of individuals and international obligations attaching to information provided by foreign authorities’. This sweeping set of conditions, it seems to me, all but wipes out the possibility of the SCCRC being able to publish its findings – certainly not without serious further delays.

In June Al Jazeera’s English language channel showed a new documentary film called Lockerbie: The Pan Am Bomber. This film raised fresh concerns over particular aspects of the case. After watching it, I wrote to the First Minister, urging the establishment of an inquiry into Lockerbie, something many others have argued for. I received a reply on his behalf from the Justice Directorate, which stated that it was ‘not possible for the Scottish Government to comment on decisions of the courts’, that the conviction of Mr Megrahi was a judicial matter and that ‘it would not be appropriate for the Scottish Government to either influence the process or to make comment’ – something it had certainly not been backward in doing vis-a-vis the Supreme Court. The letter reiterated that ‘the Scottish Government do [sic] not doubt the safety of the conviction of Megrahi’ – which is surely a comment of some sort.

With regard to an inquiry, the Scottish Government has repeatedly argued, from Kenny MacAskill’s statement explaining his reasons for releasing Mr Megrahi onward, that ‘the questions to be asked and answered in any such inquiry would be beyond the jurisdiction of Scots Law and the remit of the Scottish Government, and such an inquiry would therefore need to be initiated by those with the required power and authority to deal with an issue, international in its nature.’ I hear the sound not so much of hands being tied as of hands being washed. Here we have a Nationalist administration – keen to persuade us of the virtues of independence, and willing to attack what it considers the interference of the Supreme Court in matters under Scottish jurisdiction – using the limitations of its devolved status as an excuse for inaction. I am sorry to sound so critical of the current Scottish Government, because I believe it has acted with more honesty over Lockerbie than any British Government has since 1988. But it is precisely because Scotland has in the intervening years acquired a substantial measure of devolved power and responsibility, and is in the process of acquiring more – in my view an entirely positive development – that I make these points. There is no prospect of the British authorities addressing the outstanding issues surrounding Lockerbie – it is not in their interests to do so. But it is in the interests of Scotland to address them. What is the point of a Scottish government if it will not, or the point of the Scottish Parliament if it cannot, engage with legitimate concerns raised over a judgment made by a Scottish court about an event that took place in Scotland? We are not talking about local planning regulations here. We are talking about the biggest criminal case in Scottish history.

In forming a view on the Lockerbie affair, I have always tried to keep at a distance anything that has the whiff of a conspiracy theory. The thing about conspiracy theories, though, is that they rush to fill an information vacuum. The more I look, the more I am forced to the conclusion that if there is a conspiracy around Lockerbie, it is not one concocted by those who doubt the guilt of Mr Megrahi but a conspiracy of silence in which the US, UK and Scottish Governments are all, though not from shared motives, implicated. And this has far-reaching consequences for the wider relationship between those who govern and those who are governed, and I want to say something more about that in a few minutes.

First, however, I need to revisit some of the reasons for doubting the judgment of the special Scottish court at Camp Zeist, which in 2001 found Mr Megrahi, but not his co-accused, guilty of the bombing. And let me say here and now that if anybody can demonstrate beyond reasonable doubt that my doubts are unreasonable, I will put my hand up and apologise for my scepticism. I think nearly everybody who has expressed concerns about Mr Megrahi’s conviction would be prepared to say the same thing.

The difficulties with the case against Mr Megrahi are too many to list in full here, so I will outline just six of them. First, there is no convincing evidence of an unchecked, unaccompanied suitcase having been put on the Air Malta flight (KM180) that left Luqa Airport in Malta on 21st December 1988, nor of such a case being transferred at Frankfurt to Pan Am feeder flight 103A, before finally being transferred onto Pan Am flight 103 at Heathrow. The judges themselves acknowledged this: ‘If… the unaccompanied bag was launched from Luqa,’ they said, ‘the method by which that was done is not established, and the Crown accepted that they could not point to any specific route by which the primary suitcase could have been loaded. The absence of any explanation of the method by which the primary suitcase might have been placed on board KM180 is a major difficulty for the Crown case.’ Second, the only location where a brown Samsonite hardshell suitcase like the one containing the bomb was actually identified by a witness, was at Heathrow, a much more probable ingestion point for the bomb. Third, it is highly debatable whether Mr Megrahi was in Malta on the day that the clothing which ended up in the suitcase containing the bomb was purchased at Tony Gauci’s shop in Sliema, Malta. There were two possible dates for the purchase of the clothing: overwhelmingly the circumstantial evidence points to one of these dates as that on which the purchase was made; the judges opted for the other. Fourth, there is the problem of a crucial fragment of circuit board which was found embedded in a piece of that clothing, and which indicated that the bomb was detonated by an MST-13 timer rather than by a barometric device. Again, all the circumstantial evidence points to the latter type of detonator (activated by air pressure change) having been used, apart from the fragment of circuit board, which was introduced into the chain of evidence through a highly contentious route. Time prohibits me from saying more on this complex matter of the circuit board fragment, but the information is in the public domain for anyone who wishes to explore it. Fifth, during the night of 20th/21st December 1988, about 16 hours before Pan Am Flight 103 took off, a padlock was cut through on a door giving access to the Pan Am baggage build-up area at Heathrow, the very location where the hardshell Samsonite suitcase was seen next afternoon. The fact of this breach of security was either mislaid or suppressed by the police and Crown during the trial, and though known to his lawyers by the time of Mr Megrahi’s first appeal, was dismissed by the appeal court as ‘coincidence’. Sixth, we have three witnesses whose identification of Mr Megrahi linked him to the atrocity. One of these witnesses, a Libyan CIA informant based in Malta called Abdul Majid Giaka, the judges said they were unable to accept as a ‘credible or reliable witness’. The second, Edward Bollier, who supplied electronic timers to Libya, the judges found to be ‘at times an untruthful and at other times an unreliable witness’, although they did accept some of his evidence. The third and key witness was Tony Gauci, the owner of the shop where the clothes that were later packed around the bomb were bought: Mr Gauci initially so signally and emphatically failed to identify Mr Megrahi as the purchaser that he had to be visited over and over again by police till he did. The court recognised that Mr Gauci’s was ‘not an unequivocal identification’. He was coached, given treats and financial inducements, and according to documentation now in the public domain was offered, and after the trial paid, a sum of $2million through the United States ‘Rewards for Justice’ programme. This last fact was not known to the court at Camp Zeist, and indeed appears to have been withheld by the police and the Crown prosecutors. Had it been known, Mr Gauci’s evidence would have been tainted beyond redemption, and probably deemed inadmissible by the court. Ironically, had all or even some of this information been presented to a jury in, say, Glasgow or Dundee, it is hard to imagine that Mr Megrahi would have been convicted.

If you read the judgment, as anybody can on-line, it is hard not to be struck by the number of gaping chasms in the chain of evidence, and the impressive leaps across those chasms that the judgment manages to perform. In the penultimate paragraph of the judgment the most acrobatic leap of them all is made: ‘We are aware,’ the judgment concludes, ‘that in relation to certain aspects of the case there are a number of uncertainties and qualifications. We are also aware that there is a danger that by selecting parts of the evidence which seem to fit together and ignoring parts which might not fit, it is possible to read into a mass of conflicting evidence a pattern or conclusion which is not really justified. However, having considered the whole evidence in the case, including the uncertainties and qualifications, and the submissions of counsel, we are satisfied that … there is nothing in the evidence which leaves us with any reasonable doubt as to the guilt of the first accused, and accordingly we find him guilty.’

In the documentary film already mentioned, Lockerbie: The Pan Am Bomber, the matter of treats and financial inducements to Mr Gauci, was put to Lord Fraser of Carmyllie, who as Lord Advocate in 1991 drew up the original charges contained in the warrants for the arrest of Mr Megrahi and his co-accused (Lamin Khalifa Fhimah). Lord Fraser’s response was as follows: ‘I have to accept that it happened. It shouldn’t have and I was unaware of it.’ He has also been quoted as saying, ‘I… warned our investigators that the eyes of the world were on us, and everything had to be done by the book. It would be unacceptable to offer bribes, inducements or rewards to any witness in a routine murder trial in Glasgow or Dundee, and it is obviously unacceptable to have done it in the biggest case of mass murder ever carried out in Europe.’ This, incidentally, is the same Lord Fraser, the same former Lord Advocate, who, according to the Sunday Times on 23rd October, 2005, described Mr Gauci, the Crown’s key witness, as having been ‘not quite the full shilling’ and ‘an apple short of a picnic’, and the same Lord Fraser who has just been appointed as an adviser to the Scottish Government on standards of ministerial conduct. I am not aware that Lord Fraser has ever disputed these attributions or retracted them.

Let us accept, as we must, that what is displayed in a court of law, any court of law, is not the truth but evidence, and that truth and evidence are two very different things. This is not a cynical view, merely a realistic one. Accepting it, and looking objectively at all the evidence, I for one cannot conclude that it proves beyond reasonable doubt that Mr Megrahi planted the bomb that blew up Pan Am Flight 103, or indeed that he had anything to do with it. What the truth of the matter is – who really carried out the atrocity – we do not know. But we certainly will not arrive at the truth by studiously avoiding the compelling arguments that challenge the rightness of Mr Megrahi’s conviction. One wrong does not cancel another; it compounds it.

What are the consequences of all this for Scotland as it moves further down the road of political self-determination, that is to say as our politics and form of governance become more like our legal system, the independence of which was so jealously guarded at the Union of 1707? I believe that a failure to deal for so long with what are very legitimate concerns in the Lockerbie case is symptomatic of a malaise in the Scottish body politic, a failure of accountability. This malaise has been in part exposed by the re-establishment of a Parliament in Edinburgh, and indeed through that Parliament’s existence huge strides to cure it have been taken in the last dozen years. But devolution has also in part exacerbated the malaise, because sometimes political accountability falls conveniently somewhere between London and Edinburgh. It could be argued that this is a straightforward constitutional matter that will be resolved if and when Scotland becomes fully independent, but that I think would be naïve and wrong-headed: about as wrong-headed as the old Unionist canard that the Scots are somehow uniquely incapable of running their own affairs, and for the same reason – because it is not a uniquely Scottish problem. The implications of the Lockerbie affair have particular application to Scotland but are relevant to all democratic societies trying to balance freedom of information and open justice with issues of confidentiality and security. What kind of trust is there to be between the governed and those who govern? Can a culture of trust be built, or should we, the governed, trust only in the natural tendency of governments, of whatever complexion, to withhold information from us?

It seems to me that if as a community, a country, a nation, we do not address the outstanding matters of the Lockerbie case, then we are unlikely to address these wider concerns of trust and openness when they arise elsewhere, as they already have and inevitably will again, in our justice system and in our politics. This is not just about politicians, the makers of laws; it is at least as much about the legal system and the dispensers of justice. Faith that justice will ultimately prevail is a laudable virtue; but faith alone will not ensure that it does. We also require scepticism. It will be necessary to question, to doubt, and to require those who make and dispense the law to have the courage to answer those questions and allay those doubts, if we are to build the mature, dignified, morally defensible society that we should all want Scotland to be.

To return to where I started, to literature, but to poetry this time, not fiction. Do you remember the poem by Edwin Morgan that Liz Lochhead read on his behalf at the opening of the new Parliament building in 2004? What the people do not want, Morgan wrote, is a nest of fearties, a symposium of procrastinators, a phalanx of forelock-tuggers or a collection of ‘it wizny me-ers’? The poem, which is, appropriately, entitled ‘Open the Doors!’, goes on to say this:

Dear friends, dear lawgivers, dear parliamentarians,
you are picking up a thread of pride and self-esteem
that has been almost but not quite, oh no not quite,
not ever broken or forgotten…
We give you our consent to govern, don’t pocket it and ride away.
We give you our deepest and dearest wish to govern well,
don’t say we have no mandate to be so bold.

That is the spirit in which I have said what I have said this evening.