Monday, 10 December 2012

Christopher Brookmyre joins Justice for Megrahi campaign

[This is the headline over a report just published on the website of Scottish lawyers’ magazine The Firm.  It reads as follows:]

The celebrated Scots author Christopher Brookmyre and the Artistic Director of Edinburgh Grand Opera, Christina Dunwoodie have both joined the Justice for Megrahi campaign group.

They join signatories to a petition for calling for an inquiry into the Pan Am 103 affair including John Pilger, Archbishop Desmond Tutu, Noam Chomsky, Tam Dalyell and Jock Thompson QC.

The petition will be heard again by the Scottish Parliament Justice Committee tomorrow.

"It is extremely important that this matter remains a ‘live’ issue within the Scottish Parliament so that it cannot be arbitrarily closed down by the very people we believe might have culpability in the matter," the committee said in a statement.

"It is vital that clear and unambiguous answers are forthcoming from the appropriate authorities. In light of the integral relationship between PE1370 and the allegations we have lodged with Dumfries and Galloway Constabulary, we would request that the Justice Committee maintain the status of PE1370 as ‘open’ whilst decisions are made in respect of these allegations.

"It is obvious that we have raised many important questions that the ongoing Crown Office/police enquiry has failed to answer."


SM said...

Great news! The case itself has long been clear enough, we now need anything that can have political impact.

- - -

What should happen when the prosecution is caught giving false or incomplete information to the court?

There is only one way to go: overturn the conviction.

Of course. 'Even if the other evidence you brought seems convincing, you have proven that you are unable to live up to the demands of a court of justice. We are not going to guess on where we can trust you and where we can not.'

In Megrahis case, there would be plenty of such omissions to point at. The withholding of the break-in at Heathrow at the right time and place would alone be enough.

Today, news brought an example of overturning a conviction in Denmark.

The Google translation is a bit confusing at certain point.

This is a short resume:

Prosecutors in East Jutland Police [in Denmark] have been seriously corrected by the High Court.

In a drug-case in the city of Randers, prosecutors gave false information, with the result that the defenders did not have access to all police material.

In March, three men at the Court of Randers were convicted in a case involving 2.5 kilograms of cocaine.
One got three years, while the other two were sentenced to six years in prison each.

The men appealed to the High Court, which in a ruling Monday highly unusually set aside the District Court judgment, and ordered the men released.

According to anti-terror legislation, prosecution may request that portions of the material are being held back for the defense.
This provision is now used in several areas - as also in this drug-related case. [SM: Another example of how established rights are sliding.]

"These are two binders of material, said one man's defender", Michael Juul Eriksen.

In an attempt to keep the material secret from the defense, prosecutors told that the material contained information about other individuals who were investigated in the case.

"But it turned out not to be true for the investigations against these people was over," said Michael Juul Eriksen.

Also, when the authorities are allowed to withhold material for the defenders, the authorization must be 'renewed' immediately before the trial begins. It was not.


Rolfe said...

The situation as regards the Camp Zeist trial is interesting, because the amount of material actually withheld from the defence was limited, though still important of course. What was arguably more important was crucial material which was withheld from the court.

A prime example of this can be seen simply by comparing the findings of the Fatal Accident Inquiry with the Zeist judgement. It was absolutely vital to the reasoning of the FAI that the small number of suitcases placed in container AVE4041 in the interline shed at Heathrow were not moved when the luggage from the feeder flight was later added to the container. If there had been the slightest suggestion that luggage was moved, the FAI would not have been able to reach the conclusions it did in fact reach.

Fast forward ten years, and we see the exact opposite. It is equally vital to the reasoning of the Zeist court that the Heathrow interline items were moved. What happened? Were they moved or weren't they? How could the FAI have been so certain that they weren't, and then the Zeist court blithely assume that they were?

Examination of the Zeist transcript reveals, incredibly, that the man who was actually being assumed to have moved that luggage was not called to give evidence. The man who was called to cover the tarmac luggage transfer stage was someone who had come along to lend a hand after the critical first few minutes when any such rearrangement would have occurred. He was not asked if the luggage was moved, but it is clear that he wouldn't have been able to answer that question even if he had been asked, because he wasn't there at that stage.

How is it possible that the Zeist court had to deal with such a central question, the question of whether Mr. Sidhu (so named by his colleague who gave evidence) had moved the luggage, without ever hearing what Mr. Sidhu himself had to say about that? Well, that's exactly what happened.

Amarjit Sidhu gave about eight separate statements to the police in the 18 months following the disaster, starting on 30th December 1988. In three of these statements he confirmed that he had not moved the original items at all - at first merely as a passing remark, latterly in response to specific questioning, and explaining that he had no need to move these items as they were already satisfactorily positioned. Then in the witness box at the FAI he repeated all that, and indeed when he was specifically asked, had he removed any of the original suitcases and replaced it in a different layer, he said no, he had not done so. The FAI relied absolutely on his evidence.

Detailed examination of the baggage reconciliation report compiled by DC Derek Henderson (which was also given in evidence at the FAI and was also concealed from the Camp Zeist court) reveals that if Sidhu did not move these suitcases, then the so-called "Bedford suitcase" which was present in the container at least an hour before the flight from Frankfurt landed, was the bomb suitcase. Beyond any reasonable doubt.

Go figure.

The thing is, the defence were aware of Sidhu's statements, and his evidence at the FAI. A full transcript of the prodeedings of the FAI was available in court for any extract to be introduced into the trial proceedings as required. The defence didn't do this. Personally, I think they just didn't figure it out, which says something about Mr. Richard "brain-the-size-of-a-planet" Keen, among others.

However, does the fact that the defence had access to the crucial evidence, and failed to make use of it because they were as bamboozled as the court was, excuse the presentation of a scenario to the court that the Crown had to know was false?

Watch this space.

SM said...

Thank you, Rolfe. Very interesting.

I also read this:

The need for having the suitcase moved is just one more point where the judges just accepted something highly uncertain as having significant evidential value. Cherry-picking indeed. I had not realized that the conclusion was in direct conflict with the FAI findings.

Yes, Sidhu's statement would have been significant. Even if his memory should have failed, is there an answer to "why should he move them?"? If not, he most likely didn't.

Rolfe said...

It was the glaring absence of Sidhu's evidence from the Zeist narrative that first alerted me to what was going on. It beggared belief that the man who actually carried out the tarmac transfer hadn't been interviewed, but the court wasn't told what he had said. All we got was a load of speculation about what he might have done, which was actually fairly implausible on first principles.

The same thing applied to the detailed tabulation of the luggage that should have been in the container in the interline shed. Such information would obviously have been readily available, but it was not presented in court. (When you find it, you discover that it was six items, all of these were recovered, none of them had been below the bomb on the basis of the degree of damage sustained, and none of them was a brown Samsonite. And all three baggage handlers who saw the container at that stage, when asked to do a trial loading to show how they remembered it, put at least seven suitcases in. The court was told none of this.)

So, I see that the prosecution is not presenting evidence it quite obviously must have had. The rational conclusion from this is that the evidence is not helpful to their case. They were keen to advance the idea that Sidhu must have moved the luggage. I came to believe that Sidhu must have said he didn't move the luggage. I was reinforced in that opinion by the FAI findings, where it was an article of faith that the luggage had not been moved.

And sure enough, when one gets one's mitts on Sidhu's statements, he is very clear on the subject. He doesn't give the slightest impression of being unsure or not remembering. And he repeated it all in the witness box in Dumfries. He is the reason the FAI was so certain the luggage wasn't moved.

The prosecution had the option of calling him at Zeist and trying to undermine that testimony - as they did with Bedford and Kamboj. Badger the guy until he says, well maybe I did move the damn case, I really don't remember. They didn't try that. I suspect they realised it wouldn't fly, not with a previous denial under oath.

Suppose Sidhu had died in the mean time, as some of the other witnesses had? We can see from the other cases what should have been done. Admit his statements and his evidence from the FAI. That would have been the kiss of death though, because they couldn't have badgered him to try to get him to change his mind, and the luggage would have been deemed not to have been moved.

Rolfe said...

They had to cover the tarmac loading stage though, so what did they do? They called Darshan Sandhu, who joined Sidhu to lend a hand because of the time pressure to get that luggage transferred. Sandhu didn't do that until later though, and in fact in one of his statements he said he didn't realise at the time that there had been any Heathrow transfer luggage in the container in the first place.

It's interesting to note that Sandhu (who was about ten years older than Sidhu) had recently retired at the time of the trial and had moved to live in India. So they brought him all the way from India for that.

His testimony is still weird, though. He says straight up that the loader responsible for the tarmac transfer was Mr. Sidhu, and he only joined him later to help out. Even so, nobody asks him if he repositioned any of the luggage, or if he saw Sidhu reposition any of the luggage. Absolute silence on the point.

(The entire suitcase-shuffle theory was founded on the evidence of Crabtree, a completely different baggage handler who didn't even see the container until after Sidhu had finished filling it and closed it up. He merely acceded to the suggestion that yes, loaders would sometimes move the cases around a bit to get a better fit. Well, that's hardly contentious, but says nothing as to whether they did that often, or whether it was actually done on this occasion.)

This is a dishonest narrative. It seems as if everybody knows perfectly well that the luggage wasn't moved, but is absolutely desperate for that not to come out. To me, that says that if the luggage wasn't moved, then the Bedford suitcase was the bomb.

I think the defence were asleep at the wheel. I think they bought the whole story about the bomb suitcase being on the second layer, hook line sinker and rowboat - even though Taylor did argue against it in his closing speech. So they welcomed the suggestion that the luggage had been moved, because it enabled them to point out that in that case the Bedford suitcase could well have been put on top of the Frankfurt case that ended up on the bottom, and hey presto.

It was a pretty decent argument, and it would have worked with an open-minded jury or a bench less prejudiced than the Zeist panel. But going for it stopped them from introducing Sidhu's evidence, which would have won the case for them if they had then applied that knowledge to the baggage reconciliation findings. As I said, I think they were asleep at the wheel. Did it not occur to them to think, why is the prosecution doing back-flips to avoid calling Sidhu?

SM said...

Fine, Rolfe. Clearly the importance of this can hardly be overestimated. Too bad that nobody thought about it back then.

It is of course obvious to blame the defense (for this and many other things. Hans Koechler also does).

But for matters like this, the defense did not have years too mull over these details, in a gigantic case.

And the defense can not be blamed for the conviction taking place. The responsibility remains with the judges alone.

- - -

How would it be today if somebody accused me of getting a suitcase with a bomb through an airport control?

Could I also expect a "Well, somehow you just did it. Don't matter what the airport says about 'all suitcases accounted for', and we don't even need come up with a theory, or investigate.".

I don't think so.

Rolfe said...

I agree, one shouldn't come down too hard on the defence. They had a huge task in front of them.

There's a bigger point here though. Some people (like the Crown Office) like to say, so what, the defence were aware of Sidhu's statements and could have called him if they thought it was important. Not our problem if they didn't think of it.

I believe it is exactly their problem. They presented a contrived, dishonest scenario to the court, a scenario they knew to be false. That they succeeded in bamboozling both the bench and the defence does not let them off the hook. Or so I am reliably informed.