The Sunday Herald has posted on its website the legal grounds found by the Scottish Criminal Cases Review Commission for Abdelbaset al-Megrahi's second appeal. There was, of course, a clear public interest in making the report available and we have a right to know the nature of the SCCRC reservations and why it reached its conclusions.
It does not answer all the troubling questions which emerged in the wake of the atrocity, the investigation and the trial but it certainly casts doubt on the fairness of the verdict. Within months of the verdict three figures initiated a long protest: Dr Jim Swire (who lost his daughter), Hans Köchler (UN observer at the trial) and Nelson Mandela. Today there is hardly anyone north of the border who is not uneasy and the appeal has the support of the Kirk, the Catholic Church and the law faculties of the Scottish universities. It is also worth noting that not only his fellow prisoners but also the staff at Greenock prison believed he was innocent – usually a sign that something is seriously wrong.
The SCCRC document (a statement of reasons) sets out the grounds for referral back to the appeal court, four of which refer to the non-disclosure of evidence to the defence. This includes the main prosecution witness Tony Gauci having seen a magazine article and photograph linking Megrahi to the crime before making his 'positive' identification. There was also grave concern that Gauci knew the US would reward him with $2 million for 'successful' testimony and severe doubts about the clothing and the purchaser. A fifth reason covered 'secret' intelligence documents not seen by Megrahi's legal team while the sixth referred to new evidence on the date of clothes purchased in Malta.
I was disappointed but not surprised the commission took the forensic evidence at face value and ignored the warning of the distinguished criminal lawyer, Michael Mansfield. As he rightly says: 'Forensic science is not immutable and the biggest mistake that anyone can make is to believe that its practioners are somehow beyond reproach. Some of the worst miscarriages of justice in British legal history have come from cases in which the forensic science was later shown to have been grossly misleading'. There is, in fact, a 'canteen culture' in forensic science which encourages officers to see themselves as part of the prosecuting team rather than investigators seeking the truth.
In recent years no forensic-based case has caused greater concern than the Lockerbie trial and the prosecution has been widely accused of using the tactics of disinformation. The lead prosecutor was the lord advocate, Colin (later Baron) Boyd, who three years before had prosecuted the detective Shirley McKie in another forensic-based disaster. She was later compensated with £750,000 by the Scottish Executive after a botched trial based on faulty forensic evidence (...)
The involvement of the prosecuting team in the earlier fiasco to say nothing of severe doubts about the Lockerbie forensics is surely a matter of concern. The Crown Office said it had 'every confidence in successfully defending the conviction', but as Mandy Rice-Davies said at another trial, 'They would say that, wouldn't they'.
In fact the author of a magisterial study of the Lockerbie evidence, John Ashton, said it is clear the revelations have caused huge embarrassment for the judiciary. The trial was memorable for the performance of Fhimah's counsel, Richard Keen, dean of the Faculty of Advocates and one of the most brilliant legal minds of his generation. When I read his cross-examination of the forensic team of Thomas Hayes and Allen Feraday I thought as a professional physicist that he had shredded their credibility.
Edwin Bollier, who Keen scornfully and repeatedly referred to as 'a legitimate Swiss businessman', gave evidence about the timer which was shown to be pure fantasy. Keen then proceeded to demolish both Tony Gauci and Majid Giaka to such an extent that no-one in the court could be in any doubt that Lamin Fhimah had no case to answer. What I found beyond belief was that evidence which was judged farcical in the case of Fhimah was later accepted as plausible by the law lords in the case of Megrahi.
Having been involved in the appeal for many years, I would say my greatest doubts as a scientist involve the highly dubious theory that the bomb entered the system in Malta. Not only is there no evidence whatsoever an unaccompanied suitcase was secreted onto flight KM180, but Air Malta had won a libel action in 1993 establishing that it was not.
The Maltese police have always protested that this was a most unlikely scenario and the senior airport baggage loader was adamant that he always double-counted his luggage. This reliable official counted his luggage when it was finally gathered and again when it was physically loaded onto the plane and was certain there was no extra case. In fact, the idea of unaccompanied baggage with a bomb rattling around Europe before finding its way onto Pan Am 103 in London has always been widely ridiculed. The excellent screening at Frankfurt would almost certainly have picked it up and the theory added the further complication of requiring a non-barometric timer be used.
The interline baggage hall at Heathrow was notoriously insecure and John Bedford, a loader-driver employed by Pan Am had already told police of suspicious activity. He had placed a number of cases in the baggage container AVE 4041 for the flight but returned from a tea break to find a distinctive brown Samsonite case had been added. Sulkash Kamboj of the Pan Am affiliate Alert Security who told Bedford that he added the case, initially denied this to the police before finally admitting his involvement at the trial.
Whatever happens, it is a matter of the most profound regret that this Scottish show trial in the full glare of the international community has been allowed to descend into farce.