Tuesday, 6 September 2011

An epistolary exchange

1.  1 August 2011
Dear Alex Salmond,
In its edition of April 9 the highly influential LexisNexis English law journal Criminal Law and Justice Weekly (vol 175, no.15, pp.221-228) carried an article I wrote about the Lockerbie trial entitled “Masking Justice With ‘Mercy’ ”.
Subsequently, in its numbers for July 16 and 23, CL&JW carried a two-parter by me entitled “Exploding Lockerbie” (sub-captioned “David Wolchover goes to the heart of why the trial court got it so wrong in the Lockerbie case”.)
I don’t know whether these articles have been brought to your attention but I am taking the liberty of attaching hereto the pdfs.
I should mention that I have been in practice at the English Bar for forty years and although now semi-retired I was for a number of years Head of Chambers at 7 Bell Yard, Temple Bar, London WC2A 2JR. I am the author of a number of legal text boooks and of numerous articles in a variety of law journals stretching back some 30 years. Please see my website for details (although the website text is five years old, is in need of updating and still includes no reference to the most recent text book of which I was a contributing co-editor, Witness Testimony, Oxford: OUP, 2006).
“Masking Justice with ‘Mercy’” mainly concentrated on the manifest deficiencies in the evidence of the Maltese witness Anthony Gauci, a topic I came to as an offshoot of my long term interest in the topic of witness interviewing by the police (see website for the titles of relevant articles).
Research for that article inspired a wider interest in the details of the case as a whole and “Exploding Lockerbie” was the result.
You will see that most of part 2 consists of an analysis of the evidence of what happened at Heathrow, focusing in particular on what flowed from the account by Pan Am baggage handler John Bedford of his encounter with the mysterious clone of the bomb-loaded Samsonite suitcase.
Obviously I assume that you are thoroughly familiar with much of the evidence in question but, at the risk of indulging in self-advertisement, I believe I am able to claim that my analysis of the Heathrow angle is unprecedented in its novelty and in the depth and breadth of its reasoning.
Although the judges accepted Mr Bedford’s evidence they treated it as irrelevant because they found that the bag noticed by him before the arrival of Pan Am feeder flight PA 103A was not in fact the bomb bag. They did so in spite of the fact that it was no more than about 3 inches from the position in the container AVE4041 in which the bomb bag was located when, according to the experts, the bomb exploded.  In determining that the bomb bag came from Luqa via Frankfurt they evidently lost sight of the fact that their finding implicitly depended on a series of improbable coincidences which in their totality amounted to nothing less than manifest absurdity. In the light of that central element in the whole trial al-Megrahi’s conviction is entirely unsustainable. 
I understand that you have been invited to institute an inquiry into the atrocity but that there may be procedural difficulties about this.
Might I respectfully suggest that your government would attract little criticism in the long run in releasing a detailed and reasoned pronouncement disavowing the conviction and repudiating the finding of the judges. Although I accept that this might involve difficult political ramifications I would hazard it would face no particular constitutional obstacles and in any event the circumstances are truly exceptional.
If, on the other hand, you are of the opinion that the judgment remains logically sustainable I would invite you to indicate to me the basis of your thinking, with hope making no reference to the mere ex officio authority of the trial judges and those presiding over the concluded appeal proceedings.
I am copying this to Kenny MacAskill and Frank Mulholland. 
I very much look forward to your personal response.
Yours sincerely, 
David Wolchover 
2.  30 August 2011 
Dear Mr Wolchover
Thank you for your e-mail of 1 August to Alex Salmond, First Minister. 
Regarding the conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.  I have been asked to reply. 
 
An independent judiciary is a cornerstone of Scottish justice.  It would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case.  Mr Al-Megrahi was tried and convicted by a Scottish court before three judges and his appeal against conviction, heard by a panel of five judges, was unsuccessful.  A second appeal, following a referral from the Scottish Criminal Cases Review Commission, was abandoned by Mr Al-Megrahi.
  
The Scottish Government has always been as open and transparent as possible in this matter which is why, following the announcement last December that the Scottish Criminal Cases Review Commission has been unable to secure the necessary consents to release its statement of reasons in the Megrahi case due to the constraints of the current legislation, we now intend to bring forward legislation to overcome the problems presented by the current consent provisions.

This will allow the Scottish Criminal Cases Review Commission to publish a statement of reasons in cases where an appeal is abandoned, subject of course 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.

On the broader questions of an inquiry, the Scottish Government do not doubt the safety of the conviction of Mr Al-Megrahi.  Nevertheless, there remain concerns with regard to some of the wider issues relating to the Lockerbie atrocity.  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. The Scottish Government would be entirely happy to co-operate fully with any such properly constituted inquiry.

Thank you for contacting us with your views. 

Lockerbie Team 
Scottish Government

3.  2 September 2011 
Dear Sir or Madam
I find myself obliged to address you as such because, although your letter was expressed in the first person you omitted to identify yourself by name or position.


Suffixed to the text of your message was a notice that “[t]he views or opinions contained within this e-mail may not necessarily reflect those of the Scottish Government.” I shall take it that on this occasion you were writing on their behalf.


May I begin by thanking you – whoever you are – for your response to my e-mail of 1 August to Alex Salmond.


I further express my thanks to you for the time and effort which you have taken on behalf of the Government of Scotland in formulating their reply.


You will not be surprised to learn that as a commentator in depth on the Lockerbie case and a practising criminal advocate of some four decades standing I was well aware of the various procedural aspects of this matter to which you advert. However, I was particularly struck by one stark proposition contained in your letter and I am writing for clarification.


In your letter you state:


“An independent judiciary is a cornerstone of Scottish justice. It would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case.”


It might have been understandable if the Scottish Government had confined themselves to this position, albeit it is one which in the very special case of Lockerbie might be regarded as disappointing, not to say pusillanimous.


However, for the Scottish Government to declare, through your letter, that they “do not doubt the safety of the conviction of Mr Al-Megrahi” appears to be a very different proposition from tactfully abiding by a studied silence on the merits.


At the risk of being accused of pedantry, the self-effacing sentence “it is not for us to cast doubt” on such and such is qualitatively quite different from avowing “we do not doubt” that X is the case. On its most natural meaning the latter implies that the Government have formed a rational view of the case after due consideration of the relevant facts.


There will certainly have been no lack of opportunity to do so. The trial transcript, the trial and original appeal court judgements, and the court papers for the second, abandoned, appeal, are available for all to read and the Government’s copying arrangements will have facilitated easy access by cabinet members. It is difficult to believe that on such a vexed issue as Lockerbie some at least of the Scottish body politic have not made some effort to get to grips with the case details.


I would venture to claim that my two recent articles in Criminal Law and Justice Weekly (“Masking Justice with ‘Mercy’” and “Exploding Lockerbie”) which I attached with my August 1 e-mail, together offer a detailed, forensic, critique of the judgment warranting close attention. They will have been available to the Government for perusal for a whole month during the time that your response was in preparation. I must confess to some surprise therefore that your reply makes no reference whatsoever to either article. Criminal Law and Justice Weekly, formally known as Justice of the Peace, is one of England’s most venerable and distinguished law journals. The articles make serious and compelling points which surely deserve at the very least an acknowledgment.


For the purposes of this letter I shall assume that the phrase “do not doubt the safety of the conviction” was chosen with care and expresses a process of rational determination upon the facts. This provokes a number of questions, to which I would respectfully invite the Government’s response.


1.    Are you able to indicate whether the expression “Scottish Government do not doubt” means:



(a)     that all cabinet members individually studied the facts of the case, formed a view, and then came together to take a vote; or

(b)     that only certain members of the cabinet, for example the First Minister, the Minister of Justice and the Lord Advocate (assuming the latter was for present purposes a member of the cabinet), studied the case, and then formulated a summary for their colleagues with a recommendation which was then collectively accepted; or

(c)     that senior cabinet members dictated a view to their junior colleagues who then endorsed that view on command?



2.    In either case are you able to indicate



(a)     on what occasion the cabinet made their determination,

(b)     how much discussion there was on the factual issues,

(c)     whether any such discussion was minuted,

(d)     without indicating the views of individual ministers, the general nature of the points taken,

(e)     whether there was any conscientious dissent from expressing belief in the safety of the conviction,

(f)     whether any dissenting cabinet members have been directed by the First Minister to avoid airing their views publicly.
3.       If the answer to (1)(b) is in the affirmative the extent to which the First Minister, the Minister of Justice and the Lord Advocate have personally studied the evidence in the case.

For your information I am attaching the pdf of another article of mine, published in the current number of CL&JW, entitled “[A Postscript on Lockerbie].” (Regrettably there are two typographical errors which were introduced at a late stage through an electronic communication problem.) I would argue that the novel expos√© of the narrow but devastating point focused on in the final section is one which, standing quite alone and apart from all the other problems with al-Megrahi’s conviction, might be met by some very serious soul-searching indeed on the part of judges and ministers alike and might make some men with a conscience very hesitant about declaring they have no doubts as to the safety of al-Megrahi’s conviction.

Your message to me carried the following pro forma warning:


“This e-mail (and any files or other attachments transmitted with it) is intended solely for the attention of the addressee(s). Unauthorised use, disclosure, storage, copying or distribution of any part of this e-mail is not permitted.” 
I am going to assume that this was a standard automatically generated appendage which was not intended to require the Government’s consent as a condition of quoting your message in any further excursus into journalism on which I might embark.

Yours faithfully
David Wolchover

8 comments:

  1. Well done Mr Wolchover. This correspondence is extremely revealing and requires further distribution. It is a disgrace that the MSM show little interest in this case. But what is a greater disgrace is the Scottish governments response!
    I intend to raise this at the next SNP branch meeting
    Keep up the excellent work!

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  2. "At the risk of self-advertisment I believe my analysis of the Heathrow angle is unprecedented in its novelty and in the depth and breadth of it's reasoning".

    While I leave the reasoning to lawyers and omitted matters not directly relevant to the "Heathrow angle" (i.e. Gauci's identification and events at Frankfurt) I did post the similar if briefer article "Heathrow - The Lockerbie Evidence" (part I of "The Masonic Verses" at http://e-zeecon.blogspot.com) in 2009 and wrote to the PM in June 1996 (and to Megrahi's defence team) pointing out why the Police had made a colossal blunder in "eliminating" Heathrow.

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  3. Big deal. Nobody cares.

    And there are several pretty important points in Mr. Wolchover's article that strangely failed to make it into your semi-comprehensible version.

    Maybe you could spare us the "I said it in 1996" every time this article is mentioned. Like I said, nobody cares.

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  4. I give Baz credit for seeing it early on - I haven't been annoyed yet with hearing that (from not being around enough?). London clues are crucial. My analysis, while not the earliest or most lawyerly, is the best, though. :)

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  5. I agree, actually. Baz did spot it early on. The problem is he was unable to articulate his thoughts in such a way as to make anyone take notice. He has been consistently unable to explain or expand on his original article, merely resorting to referring to it or repeating particular passages.

    I recall trying to discuss his take on this some time ago, and getting nowhere, because he was unable to do anything other than reiterate his original position. He even attacked posts which were agreeing with him, because they did not express that agreement in his precise terms.

    The fact is that events have moved on a lot since 1996, and in particular we have the Zeist transcript. There are sections of that which illuminate the Heathrow events quite considerably. Mr. Wolchover has picked up on these, plus other matters such as the omission of Henderson's evidence at Zeist, to make the case for a Heathrow loading far clearer and more compelling than any argument that could have been made in 1996. I'd say there are at least four seminal points in his article that appear there for the first time.

    It would be interesting to discuss these, and other aspects. Wolchover is quite right that his article breaks completely new ground in a number of respects.

    Baz's sulky repetition of "but I noticed that first" is boring and irrelevant.

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  6. The Wolchover articles in the English legal whateva Journal were great, but this reads like he's got the Scot Gov in court and he's cross-examining them. I'd expect any future replies, if he actually gets any, to become more and more curt.

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  7. Perhaps things have moved on. The point I was making and continue to make is that the introduction of the primary suitcase at Heathrow was within the public domain long before the trial thanks in particular to David Leppard's "On the Trail of Terror" (which David Wolchover quotes as a source)and the focus of my article was deliberately on what was known prior to the trial (save the revelation Marwan Khreesat was a CIA "asset".)

    I must confess I didn't spend a lot of time discussing evidence that was omitted from the Camp Zeist trial such as DC Henderson's or Herr Meier's. The focus of my article was to understand why John Orr had "eliminated" Heathrow.

    I also thought I had expanded on my original article. For example "Charles" challenged me on my theory as to how the primary suitcase came to London a matter I had not included in my article as it was simply speculation. I opined that the primary suitcase had come to England on the Gothenburg Ferry, I suggestion I made in my letter to the PM. Thuis is exactly what David Wolchover said. (and by the way when I wrote to the PM I did not believe for a second that his claim the investigation was open was true.)

    Unfortunately David Wolchover's allegations are completely untrue.

    On the 5th June 1996 Sir Teddy Taylor MP wrote to the Metropolitan Police Commissioner. The reply from a Detective Superintendent Emerton (who clearly had no problem understanding my letter) of the 12th June reads:

    "Thank you for your letter to the Commissioner dated 5th June 1996 concerning a letter from your constituent and his concerns about the conduct of the investigation into the "Lockerbie Bombing" and, in particular where, and by whom, the bomb was put on the ill-fated flight Pan Am 103.

    Although the investigation into the tragedy was conducted by the Chief Constable of Dumfries and Galloway the investigation into the allegation that the bomb was put on the aircraft at Heathrow Airport was thoroughly investigated on his behalf by the Metropolitan Police Anti-Terrorist Branch. The allegation was proved beyond question to be without foundation.

    I do hope this is of some assistance to you in allaying your constituent's fears."

    Boring and irrelevant? What has Rolfe or the Justice for Megrahi campaign (involving the same clique that got Megrahi convicted) ever done?

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  8. ps There is a slight difference between pointing out to the authorities four years before the trial that the Police had made a colossal blunder in eliminating Heathrow and writing an (excellent) article a decade after Megrahi's conviction and demanding that the Scottish Executive simply declare him innocent by Government decree. The respondent makes some good points about the rule of law.

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