An open letter from John Ashton to Magnus Linklater

[What follows is an open letter posted today on John Ashton’s Megrahi: You are my Jury website.  It reads in part:]

Dear Magnus,

First of all, let’s keep this civil. People I respect assure me that you are a decent man. I don’t want to make an enemy of you, or things to get nasty.  I’m writing to respond to a few things that you have written, to put the record straight on certain matters and to invite your response. I would like a debate, not a row – shouting doesn’t win arguments.

The first matter I would like to discuss is your article of 13 August last year, which commented upon the Edinburgh book festival event at which, Jim Swire, Professor Hans Koechler and I spoke. Here is what you wrote: [RB: The full text of Mr Linklater’s article can be found here.]

This seriously misrepresented my position and, as far as I know, that of Dr Swire and Professor Koechler. I have never alleged that there was a grand conspiracy to frame Megrahi and Libya, in which the police, the Crown Office, witnesses, judges, senior politicians and the intelligence services were all complicit. You claim to have read my book, Megrahi: You are My Jury.  Perhaps, then, you had forgotten pp 371 to 373, which discuss the possible framing of Libya, either by the CIA, or by the real bombers. At no point do those page suggest that the Scottish authorities (the police, Crown Office and judges) were party to such a plot. You may also have forgotten this passage on p376 in Megrahi’s words, which happens to mirror my own view:

I often wonder who is to blame for my ordeal. I doubt we’ll ever know who framed me and my country. The police cannot be blamed for following leads that fell into their laps. Together with the Crown, they stitched together a flimsy case based around a mercenary double agent, a highly unreliable identification, a hopeless CIA informant, some highly equivocal documents and overstated forensic conclusions, but, again, they were only doing their jobs.

My new book, Scotland’s Shame, is more explicit. Chapter 6 opens as follows:

Let us be clear, there was no grand conspiracy by the intelligence services, senior politicians, police officers, prosecutors and judges to subvert the Lockerbie investigation and frame Megrahi and Libya. Conspiracies, of course, do sometimes happen, but seldom ones involving so many diverse parties.

To digress for a moment, both books posit that there may have been a plot, hatched in the murkier recesses of the US intelligence world, to frame Libya. You can write this off as a crazy conspiracy theory if you like, but, remember, these are the people who spawned a far bigger conspiracies to sell arms to Iran in return for US hostages and to use the profits to illegally support Nicaraguan terrorists. They are also the people who spent the Eighties spreading disinformation about Libya; a fact reported by, among others, Bob Woodward and confirmed by US government documents (in case you think I am recycling old conspiracy theories). Remember also that one of the three key witnesses, Magid Giaka, was a CIA informant before Lockerbie. Another, Edwin Bollier, was also almost certainly a western intelligence asset (the Stasi, with whom he had been dealing since at least the early Seventies, kept close tabs on him and were convinced that he was). We now know that the famous fragment of circuit board, PT/35b, which the Crown claimed originated from one of the 20 timers supplied by Bollier to Libya, could not have done so. We don’t know its origin, but it’s not unreasonable to suggest that it was faked in order to lay a false trail to Libya. According to the head of the FBI investigation, Richard Marquise, the Swiss security police believed that it was a plant, and the same thought even crossed Marquise’s mind. He also revealed that an unnamed US intelligence agency (the NSA from his description) was aware that Megrahi was travelling around on a false passport. It is quite possible that the CIA identified Megrahi as a handy culprit and worked backwards to implicate him.

But this is to stray from the big issue, which is the very Scottish debacle of Megrahi’s conviction. Let’s start by considering the guilty verdict and the 80-page judgment upon which it was founded. As you know, the verdict was based on him buying clothes from the Maltese shop, owned by the Crown’s star witness, Tony Gauci, on 7 December 1988. According to the Crown’s evidence, this was his only window of opportunity, so, if it wasn’t 7 December, the case collapses. The court was told by Gauci that, as the man left the shop, he bought an umbrella because it was raining. The trouble is, the weather data for 7 December, recorded just a few kilometres away, show that it wasn’t raining.  The judges knew this, yet still concluded the clothes were bought on 7 December. We say this was unreasonable. Does that make us conspiracy theorists? If so, we’re in good company, because the Scottish Criminal Cases Review Commission said it too; in fact it was one of the six grounds upon which they referred the case back to the appeal court. These are their exact words:

The Commission does not consider there to be any reasonable basis for the trial court’s conclusion that the purchase took place on 7 December 1988 and therefore for the inference it drew that the applicant was the purchaser of the items from Mary’s House.

This is devastating, because, given the centrality of 7 December to the conviction, the commission had come as close as it legally could to saying, not only that the judgment was unreasonable, but also the guilty verdict itself.

The other major concern of Megrahi’s supporters is with the conduct of the Crown. We say that they withheld numerous items of evidence that would have helped Megrahi’s defence.  Does that make us conspiracy theorists? No, it merely means that we have read the SCCRC’s report. Remember that no fewer than four of the SCCRC’s six grounds of referral concerned undisclosed evidence.

Remember also what happened at trial in relation to the CIA cables concerning Majid Giaka. The Crown originally disclosed only heavily redacted versions. The defence then got word that the Crown had secretly viewed largely unredacted copies at the US embassy in The Hague. When the defence raised this with the court, the lord advocate Colin Boyd offered the assurance that there was nothing in the blanked out sections that bore upon the defence case. When, under pressure from the judges, the Crown handed over less redacted versions, one close observer noted: ‘Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond.’ In a pointed nod to the lord advocate’s earlier assurance, he noted ‘I frankly find it inconceivable that it could have been thought otherwise.’ In other words, he believed that the lord advocate, had seriously, if unwittingly, misled the court. Was this observer a crazy conspiracy theorist? No, actually it was defence counsel Richard Keen, the current dean of the faculty of advocates. And why did he say it? Because it was blindingly obvious that the redacted information cast Giaka in a very bad light and thus, contrary to the lord advocate’s claim, significantly undermined the Crown case.

We do not allege that the withholding of important evidence was part of a huge government and intelligence services inspired plot, rather we suggest that it resulted from a series of appalling failures that were specific to the Crown Office and its servants. The committee of Justice for Megrahi, of which I am not a member, has made allegations – which do not appear in either of my books – that some of these failures might amount to criminal conduct. Whether they do or not, as I have made clear in Scotland’s Shame, the failings almost certainly arose because those responsible wished to secure the conviction of people whom they sincerely believed to be guilty, and not because they wanted to protect the real bombers and see innocent people convicted.

Conspiracy theorist is a label that is often used by politicians and, I hate to say it, lazy journalists, who have run out of reasonable arguments, in order to denigrate and marginalise those who challenge the official line on controversial issues. Funnily enough, the current lord advocate, Frank Mulholland, uses it too.

Which brings me to your interview with Mulholland, published on the 21 December last year, under the headline Pro-Megrahi backers flayed. The article billed the interview as ‘the most detailed rebuttal yet made’ against the claims of Megrahi’s supporters, yet there was no detailed rebuttal at all, just general assertions, a bit a bluster and some serious distortions.

You reported that Mulholland had invited in an independent counsel to conduct a review of the evidence and that he or she had concluded that the conviction was sound. The truth was very different. As Mulholland later revealed in a letter to MSP James Kelly, the independent counsel was in fact brought in by his predecessor Elish Angiolini five years earlier at the time of the SCCRC’s referral of the case to the appeal court. The purpose of the review was to establish whether there was anything in the SCCRC report and its appendices that suggested that the Crown should not defend the conviction. Mulholland told Kelly: ‘The outcome of the review satisfied me that the Crown had a robust defence to the potential grounds of appeal identified by the SCCRC.’ This did not mean that the independent counsel had concluded that the conviction was sound. The review had not considered any of the important evidence that had emerged since 2007, in particular the forensic evidence, revealed in Megrahi: You Are My Jury, which showed that PT/35b could not have originated from one of the 20 Mebo timers supplied to Libya.

On the subject of the book, the article said that Mulholland had considered all of its claims and ‘finds no evidence to support them’. Did it not occur to you that this was rather an odd statement to make, given that the book’s assault on the Crown case was all based on Crown evidence – much of it previously undisclosed – and the word of Crown witnesses? And did you not think to ask him why the Crown had withheld so much important evidence? And why the Crown Office had allowed the police to seek a multi-million dollar reward for Tony Gauci from the US government, even though it was forbidden by its own rules from seeking or making such a reward itself? Isn’t the role of responsible journalism to ask awkward questions of those in authority, rather than amplify their defences?

And did you not think it rather inappropriate for the lord advocate to be denigrating as conspiracy theorists people such as Dr Jim Swire and the former parish priest of Lockerbie, Father Pat Keegans? The Crown Office claimed in a press statement that these same people had been ‘deliberately misleading’, in other words, that they were liars. What a truly appalling – and, for the record, untrue – thing to say about decent people who are simply concerned that justice has not been done. I can’t imagine the Director of Public Prosecutions and the CPS lashing out like that, can you?

You revived the ‘conspiracy theorists’ slur in a Times column on 4 October. This time you added two further claims. One was that Megrahi’s decision to drop his appeal ‘has never been properly explained’, which, in your view, is the weakest plank in his case.  If you had properly read Megrahi: You are my Jury, you would know that the explanation for Megrahi dropping his appeal is that the Libyan minister Abdelati al-Obedi told him that Kenny MacAskill had privately indicated to him (Obedi) that it would be easier to grant compassionate release if he did so.  I have spoken to all the witnesses to the conversation between Obedi and Megrahi and they all confirm the accuracy of the book’s account of it. Megrahi had advanced cancer and was desperate to get back to his family. He knew that he was not legally obliged to abandon the appeal, but, in the circumstances, felt that he had no choice. If you had been stuck in a foreign prison with advanced cancer, would you have reacted differently to such pressure? I doubt it.

Your other claim concerned the evidence about Heathrow airport. You wrote:

For all the many thousands of words that have been written suggesting that the prosecution case was flawed, and that the Scottish legal system presided over a spectacular miscarriage of justice, the alternative theories are well short of sustaining proof.

It is one thing to challenge the evidence on which al-Megrahi was convicted, another to sustain a case that is not, itself, threadbare.

Dr Swire believes that the bomb was not put on board Pan Am 103 on Malta, but that it was smuggled onto the plane at Heathrow Airport. This, along with other theories, was advanced at the time of the trial, examined, and dismissed for want of evidence.

You subsequently tweeted that Heathrow is the weak link in our argument, that the evidence suggesting that the bomb originated there ‘was tested to destruction’ at Megrahi’s trial and that ‘there’s simply no evidence to back it.’ Dear me, how misinformed can you be?

Before responding in detail, it’s worth pointing out that it is not incumbent upon us, Megrahi’s supporters, to prove an alternative case. It just so happens that we think that there is at least one alternative that stands up better than the prosecution case.

Anyway, about that Heathrow evidence. As you know, the bomb exploded in luggage container AVE4041. Most of the bags in there had been unloaded from the Frankfurt feeder flight, PA103A, including, according to the Crown, the brown Samsonite from Malta. However, there was some other luggage in there, which had been loaded before PA103A arrived. This was supposedly Heathrow interline luggage, meaning it had arrived at Heathrow on other flights. All of the loaders who were involved in packing AVE4041 confirmed something very significant: before the Frankfurt bags were loaded the entire floor of the container was covered with luggage. One of the loaders, John Bedford, recalled seeing something still more significant: a brown hardshell suitcase ‘the type Samsonite make’, positioned very close to where the explosion later occurred. He saw it when AVE4041 was in the interline baggage shed, well before the Frankfurt flight arrived. Bedford was clear that he hadn’t put it there and so too was the only other person on duty in the shed, Sulkash Kamboj.

The police produced a detailed schedule of all the baggage that could have found its way into AVE4041. It demonstrated that a maximum of six Heathrow interline bags could have been in the container before PA103A arrived, all of which were within the normal size range. However – and here’s the rub – covering the base of the container could have required seven or eight standard sized cases, just as in this photo:

The schedule showed something else very important: none of the six legitimate bags were brown, hard-shelled suitcases.

The loader who added the Frankfurt bags, Amarjit Sidhu, was sure that he did not move any of the bags that were already in AVE4041 when he added the Frankfurt bags, indeed, most of the loaders said that it was not their custom to rearrange bags. So, the Bedford case must have been very close to the explosion, indeed, according to the Crown case, it should have been immediately below the brown Samsonite suitcase from Malta. If that suitcase existed, then the police should have recovered fragments of two brown hard-shelled cases, but they only found fragments of one. So, what happened to the Bedford case? The obvious answer is that it contained the bomb and that the Malta case never existed.  Security around the interline shed was non-existent and, as Bedford acknowledged in evidence, anyone with airside access could have placed a suitcase into the container.

But wasn’t the bomb suitcase in the second layer of luggage, slightly overhanging the angled section of AVE4041 and Bedford’s in the first layer? That’s what the Crown claimed, but the scientific support for it is, to say the least, equivocal (see pp 395-404 of Megrahi: You are my Jury). And, if you look back at that photo, it’s clear that a suitcase could be in the bottom layer yet still overhang the angled section.

The Crown disclosed the police schedule to the defence early on during the trial preparations and notified them that they would be running an exclusion case, ie they would show that all the bags in AVE4041 were legitimate apart from the one allegedly from Malta. But, guess what, the schedule was not among the Crown productions that were later lodged with the court. Furthermore, the Crown didn’t run an exclusion case, probably because they couldn’t exclude the Bedford suitcase.

The Crown told the defence that the schedule contained inaccuracies, which may account for why the defence didn’t use it at trial. However, there is no evidence that its key finding – that there were only six legitimate items in AVE4041 when the Frankfurt flight arrived, none of which was a brown hard-sided case – was mistaken. If there was such evidence, the Crown would likely have used it to undermine the Bedford bag theory.

As for the evidence being ‘tested to destruction’ at the trial, this is simply wrong for two reasons. The first is that much of the key the evidence was absent. The Crown relied on the Maltese clothes and documents from Frankfurt airport to support their claim that the bomb had come from Malta, while the defence submitted that the Bedford case matched the bomb suitcase, that it was at, or could easily have been moved to, the location at which the explosion occurred, and that remains of only one brown hard-shelled case had been recovered. None of the following were not put before the court:

• The crucial baggage schedule
• The voluminious witness and documentary evidence upon which it was based
• Detailed evidence forensic and witness evidence about the likely positioning of most of the blast damaged cases (a potentially crucial issue in determining the location and identity of the primary suitcase)
• The evidence of Sidhu, who added the Frankfurt luggage, who was sure that he never rearranged any of the bags.

The defence’s reasons for not running an exclusion case based on the baggage schedule were articulated by John Beckett in a response to the appeal court and are summarised at pp335-6 of Megrahi: You are My Jury. Regardless of whether those reasons hold water – and one can make a strong case that they don’t – by not presenting the schedule and the other evidence listed above, both sides prevented the full picture from emerging.

The second reason is that the judges sidestepped the issue of the Bedford suitcase. To remind you, they acknowledged that Bedford was ‘a clear and impressive witness’ and that the evidence supported the defence submission ‘that a suitcase which could fit the forensic description of the primary suitcase was in the container when it left the interline shed.’ So, how did they get around the issues? By relying on evidence from another loader, Terence Crabtree, who was not involved in loading the Frankfurt bags into AVE4041, that luggage was sometimes rearranged. They acknowledged that, if this happened – and according to the actual loader of AVE4041, Sidhu, it didn’t – then the Bedford case could have ended up in the second layer, in exactly the position that the Crown claimed the primary suitcase was in. But, they then added: ‘if there was such a rearrangement, the suitcase described by Mr Bedford might have been placed at some more remote corner of the container, and while the forensic evidence dealt with all the items recovered which showed direct explosive damage, twenty-five in total, there were many other items of baggage found which were not dealt with in detail in the evidence in the case.’ So, it seemed that the judges believed that it for was the defence to run an exclusion case in order to prove the Bedford suitcase bomb scenario, not for the Crown to run one in order to prove the Maltese scenario. A novel reversal of the burden of proof, wouldn’t you say? And one that fell a long way short of testing the Heathrow evidence to destruction.

There is much more to be said about Heathrow, all of which goes to demonstrate that the Bedford suitcase contained the bomb. Dr Morag Kerr has written a book about it, due to be published soon, which I recommend that you read. She is no daft conspiracy theorist, indeed, before her involvement in the case she spent a lot of time taking on 9/11 conspiracists; she simply combines rigorous attention to detail with rigorous logic. I doubt that anyone, including the Crown and defence lawyers, has devoted so much time to the issue. Her aim has been to uncover the truth, not to win a tactical court battle.

If, as seems very likely, the Bedford case contained the bomb, then the evidence from Malta and Frankfurt becomes irrelevant, but let’s look at it anyway. First Malta. What evidence is there from Luqa airport, from where the bomb supposedly began its journey? None. That’s right, none. According to the Crown, Megrahi and Fhimah somehow – the advocate depute was not specific – smuggled the bomb suitcase onto Air Malta flight KM180 to Frankfurt. The airline had unusually strict baggage procedures, which meant that the head loader had to physically count the number of bags in the hold to check that the total tallied with the number of legitimate check-in bags. It did. What’s more, there is no evidence of any suspicious activity around the plane and no evidence that the pair had corrupted any Air Malta staff. The Crown case was that the difficulties of getting a rogue bag onto KM180 were such that Megrahi must have had assistance from Fhimah, ie they must both have been guilty. Fhimah was, of course, acquitted, which begs the question, which the judges failed to answer: how, and with whose help, was Megrahi able to get a suitcase onto KM180?

Another close observer of the case commented:

[T]here is considerable and quite convincing evidence that [the placing of an unaccompanied suitcase onto KM180] could not have happened … Now, it’s quite difficult rationally to follow how the Court can take the step of saying, ‘Well, we don’t know how it got on to the flight. We can’t say that. But it must have been there.’ On the face of it, it may not be a rational conclusion.

Was this person a deluded conspiracy theorist? No, he was Lord Osborne, one of the judges who heard Megrahi’s first appeal. (In view of this comment, one wonders if the outcome of that appeal might have been different had the defence submitted that the trial verdict was unreasonable.)

What other evidence is there from Malta? Only the clothes from Tony Gauci’s shop. Clearly, they do not prove the origin of the bomb. They were bought, according to the Crown, on 7 December 1988, so could have been anywhere by the day of the bombing two weeks later.

It was the documents from Frankfurt airport that proved to be the clincher. They supposedly showed the transfer of a bag from KM180 to PA103A, but they fell woefully short of proof. All they in fact showed that a luggage tray was dispatched through the airport’s automated luggage system from a particular input station to PA103A’s departure gate at a time when bags from KM180 were supposedly being processed at the station. We assume that there was a bag in the tray, but there’s no proof that there was, still less proof that it was a brown Samsonite from Malta. As the German police discovered, the Frankfurt evidence was incomplete and confusing. What evidence there was indicates that at least one other unaccounted for unaccompanied bag was on PA103A. The police produced a schedule of all the baggage found at Lockerbie, but the Crown did not see fit to disclose it. It’s likely that it included bags that the police were unable to link to their owners, any one of which could have been in the tray that supposedly contained the Maltese suitcase.

The officer who conducted the luggage transfer analysis at Frankfurt, Jurgen Fuhl, concluded after an 18-month investigation: ‘Throughout the enquiries in to the baggage for PA103A there was no evidence that the item of baggage containing the bomb had gone with the baggage from or via Frankfurt/Main to London. In connection with the information about the other contents of the bomb-case (textiles from a shop on Malta) and the possible transfer of a case in Frankfurt from KM180 this possibility can however not be excluded altogether.’ So, the Crown’s claim that the bag was transferred from KM180 to PA103 could not, in the words of the man who knew most about the Frankfurt baggage evidence ‘be excluded altogether.’ Hardly proof beyond reasonable doubt, eh?

Remember, no one at Malta or Frankfurt recalled seeing a brown, Samsonite type suitcase anywhere near the feeder flights KM180 and PA103A. Only one person recalled seeing such a case, John Bedford, furthermore, in contrast to much of the evidence of the Crown’s star witnesses Tony Gauci and Majid Giaka, his recollection was unprompted.

Finally, some questions for you.

1. Do you still say that we believe that the Scottish police, prosecutors and judges were party to a grand conspiracy?

2. Do you not think that the SCCRC’s findings that the trial court judgment was unreasonable, and that the Crown had withheld numerous items of exculpatory evidence, leave a terrible stain on Scottish justice?

3. Are you comfortable with the lord advocate and Crown Office branding their opponents as conspiracy theorists and de facto liars?

4. Do you really still believe that the Heathrow evidence was tested to destruction?

You can email me via this website. I look forward to your response.

Kind regards,

John.