[This is the title of an article published in today's edition of the Criminal Law & Justice Weekly by David Wolchover, barrister and Head of Chambers Emeritus at 7 Bell Yard. It forms a postscript to Mr Wolchover's earlier Lockerbie articles which are referred to here and here. One section reads as follows:]
The Smoking Gun of Injustice: X-rays at Frankfurt
We have seen how the court’s reliance on a wildly improbable series of coincidences and a circularity of assumptions might have justified describing the trial as a merry farce had it not amounted to such an unfunny disgrace. But quite aside from all that, there was one very simple error of fact which alone irrevocably destroys the basic premise on which the Crown and the Judges relied, the premise that the suitcase containing the radio-cassette player bomb was flown from Malta on the morning of December 21, 1988 and was interlined at Frankfurt on to Pan Am feeder flight PA103A. Although the error might aptly be described as Lockerbie’s smoking gun of injustice it appears to have been almost entirely overlooked in the critical literature.
A discrepancy in the baggage tally points to the possibility that an item which may have come from Air Malta flight KM180 from Luqa may not actually have ended up on the feeder flight at all. But if it did, it would certainly have been screened by Frankfurt x-ray operator Kurt Maier.
The main article mentioned that giving evidence the US civil proceedings against Pan Am and their insurers in 1992 Maier stated that he would certainly have alerted his supervisor had he seen a radio or radio-cassette player on his screen. It also mentioned that he was not called as a witness at Zeist owing to serious illness. Unfortunately, what it did not also mention was that the judges, incredibly, were never referred to his 1992 evidence but only to the notes of his January 1989 interview (conducted in English) by US Federal Aviation Administration investigators (Zeist Production 1792; Zeist transcript, pp1866-7). The notes record that if “he found something unusual ... he would call his supervisor if necessary,” and that “he could say without question that there was no explosives” [sic] in any of the bags. But the notes also purport to attribute to him the odd notion that an external plug on an electrical device “clears his doubt about any explosive device.” The judges accordingly observed that Maier’s “of what he looked for does not suggest that he would necessarily have claimed to be able to detect explosives hidden in a radio cassette player.” Since this declaration evidently formed the basis of their finding that Maier must have let the bomb through it is clear that they misconceived the nature of his duty in the context of the “Toshiba warning.” That duty was not to “detect explosives” in a radio-cassette player but to look out for and report any radio-cassette player in luggage.
This would have become apparent from what he asserted in the 1992 civil trial. Closely cross-examined on his FAA interview, he insisted that if he had seen a radio-cassette player he would have called his supervisor for the very good reason that in view of the Toshiba warning he had specific instructions to do so (see transcript JA 1099-1100). The crucial point he was making was that in accordance with those instructions he would have called the supervisor regardless of his personal opinion of what made a radio-cassette player suspicious. That he would have followed his instructions is supported by the fact that he was described as a careful and serious-minded employee (Zeist transcript, p1848). He did not call his supervisor. Therefore none of the bags he screened contained a radio-cassette player. QED. It was and remains as simple as that.
Although there was said to be some doubt about the quality of the US court’s German-English translation, it is arguable that any uncertainty is more likely to have originated from the interview, which was conducted in English, a language Maier plainly found difficult else he would hardly have needed an interpreter for court. In contrast with the court video record the interview notes did not represent a verbatim minute and moreover, although the FAA investigator (Saunders) who was called at Zeist to produce the notes stressed that she and her colleague (Tiedge) had signed them, significantly she made no reference to Maier himself having done so.
Because the Zeist judges relied exclusively on the notes and remained blissfully unaware of his sworn courtroom testimony they were precluded from making a valid assessment of the totality of his evidence on the crucial point. It was an elementary and fundamental error of process that was completely avoidable, went to the heart of the allegation and proved catastrophic.