A second open letter to Magnus Linklater from John Ashton

[Following Magnus Linklater’s article in yesterday’s edition of The Times, John Ashton has written him another open letter.  It reads as follows:]

Dear Magnus,

More than two months ago I wrote you an open letter and invited your response. You promised that you would, but, so far, you have not. Yesterday you wrote another commentary piece for the Scottish edition of The Times. So riddled is it with distortions that I feel I must again make a public response. Your article follows in italics, with my comments in regular type.

Why does Lockerbie retain such a hold on the memories of those who suffered the loss of friends, relatives, and loved ones all those years ago? That awful day, when Pan Am 103 crashed into the little Borders town on December 21, 1988, has faded into distant memory. Lockerbie itself has moved on. These days people there prefer to talk about the way the town has developed, its modest expansion, its new houses, the jobs it has created, its hopes for the future, and yet the agony goes on.

Today, as on every anniversary since December 21, 1988, the American families of those who died will meet again at Arlington Cemetery in Washington, to remember those they lost. They have grown old with Lockerbie, but they have not forgotten.

In recent years there has been another impetus to their grief: they are outraged by the campaign that has been waged in Scotland by those determined to prove that the conviction of Abdul Baset Ali al-Megrahi was a miscarriage of justice.

They see the sustained attempts by supporters of al-Megrahi to suggest that he was innocent and that Libya was never involved in the plot, as a betrayal of the victims.

Bob Monetti, whose son, Rick, 20, was killed in the atrocity, is enraged by what he calls “the conspiracy theorists”.

“They have lost sight of reality,” he says. “We cannot let go of these memories so long as this campaign to peddle a false version of events goes on.”

It’s not just Bob Monetti who calls Mr Megrahi’s supporters ‘conspiracy theorists’ is it Magnus? You and the Lord Advocate do it too, but in this instance you are using Mr Monetti as your proxy. I repeat the point that I made in my last letter: if we are conspiracy theorists for suggesting that the trial court judgment was unreasonable and that the Crown withheld numerous items of important exculpatory evidence, then we are in good company, because the SCCRC came to exactly the same view. Also, to repeat, I and the majority of Mr Megrahi’s supporters do not believe that the Scottish authorities were knowingly complicit in a plot to wrongly convict Mr Megrahi. The relatives are entitled to call Mr Megrahi’s supporters what they like (some, of course, are among his supporters). They are also entitled to the truth and, for many years vital evidence that would help them know the truth was withheld – indeed, for all we know, important evidence is still being withheld.

At the heart of the American concern — and it is held by all the families — is a profound conviction that the Scottish police and judicial authorities got things right when they followed the trail of evidence that led to al-Megrahi and implicated Libya. “The Scottish police are our heroes,” says Mr Monetti.

Steadily, over the years, however, the counter-theory — that Iran, not Libya, were the sponsors of the terrorist attack — has gained ground. Because judges and lawyers at the original trial and appeal, including prosecutors and defence, have had to remain silent, constrained by the conventions of the Scottish judicial system, they have had to stand by as increasingly wild theories have spread about where and by whom the bomb was loaded onto the plane. In consequence, the impression has grown among the public at large that a gross miscarriage of justice has taken place.

Setting aside the occasional cranks like Patrick Haseldine, what are these increasingly wild theories, and who is peddling them? Please enlighten me. The supposed counter theory that Iran, rather than Libya, was behind the attack is in fact older than the Libyan theory. Declassified US intelligence documents state as fact that Iran commissioned the bombing from the PFLP-GC.

What you omit to mention is that the Justice for Megrahi group, who is at the forefront of the efforts to clear Mr Megrahi, are deliberately neutral on the issue of which country sponsored the bombing.

There are only three places at which the bomb could have been loaded. As I explained at length in my last letter, Heathrow is the most likely and Malta the least.  Dr Morag Kerr has written a book on the subject, which I suggest you read. She has devoted years to studying to the issue – a luxury not available to the lawyers.

Yet what has been ignored is that each and every counter-theory, advanced to exonerate al-Megrahi and Libya, was examined in detail at the time of the original trial — not by the prosecution, but by the defence. After all, it was very much in their interests that an alternative version of events, clearing the two accused, should be presented to court.

Some of the best legal minds in Scotland, who have gone on subsequently to become sheriffs, senators and judges, were involved in this, the highest-profile case ever to have been heard under Scottish law. The notion that they, in examining evidence which could have been to their advantage, knowingly overlooked or suppressed vital evidence, is bizarre.

Neither I, nor, to the best of my knowledge, Mr Megrahi’s other main supporters have ignored the fact that counter theories were examined by the defence. What you ignore is a) that some key evidence was withheld from the defence by the Crown, and b) that, in the view of counsel for Mr Megrahi’s second appeal (no less eminent than the original defence team), certain aspects of his defence team’s approach at trial constituted defective representation. What is bizarre, Magnus, is your suggestion that Megrahi’s supporters have accused the defence of knowingly overlooking or suppressing vital evidence. That accusation has never been made by the JFM committee, by me, or by the lawyers who subsequently represented Mr Megrahi. The accusation – which, as a non-lawyer, I do not make – is that the defence team made some serious misjudgements, not that they deliberately undermined Mr Megrahi’s defence. Such arguments are, in my view, a sideshow. The bottom line is that the defence easily did enough to get Mr Megrahi acquitted. To remind you, the Crown case hinged on the claim that Mr Megrahi bought clothes from Tony Gauci’s shop on 7 December 1988. Mr Gauci was clear that, as the man left the shop, he bought an umbrella because it has started to rain. Defence witness Major Joseph Mifsud, formerly Malta’s chief meteorologist, testified that the weather records indicated that there was no rain on 7 December, yet the judges concluded that the purchase took place on that day. This was, in the view of the SCCRC, unreasonable. Do you believe otherwise?

Later, in meticulous detail, an appeal court, presided over by five of Scotland’s leading judges, considered each of the grounds for overturning the original verdict, and rejected them all.

As you should know, the first appeal was brought on very limited grounds. To the surprise of many observers, the defence did not argue that the verdict was unreasonable.

Finally, over four years, the Scottish Criminal Cases Review Commission (SCCRC) drew up a 700-page document that must count as one of the most exhaustive and detailed ever produced in Scotland. It is both a profound piece of investigation and a masterly legal report, and must stand as the definitive account of the Lockerbie evidence.

It determined that there were grounds for a further appeal and referred them to the High Court. This was al-Megrahi’s opportunity to have his often proclaimed innocence heard in a court of law. He turned it down, however, preferring to return home to Libya on compassionate grounds rather than risk sacrificing his liberty.

The SCCRC report is exhaustive in some areas, notably the evidence of Tony Gauci, but is very poor in others. Its investigation of the crucial circuit board fragment PT/35b, for example, was lengthy, but completely missed the fact that it could not have originated from one of the 20 timers supplied to Libya. Its investigation of the claims of former CIA agent Robert Baer were also very poor. He claimed that large amounts of money were transferred to Swiss and German bank accounts of the PFLP-GC and one of the early prime suspects Mohamed Abu Talb, yet the SCCRC failed to conduct any inquiries in Germany and Switzerland, and with the CIA, and instead accepted the word of the police and British security services. Worst of all, the SCCRC report failed to consider, let alone investigate, the evidence relating to any of the three airports involved in the case. How, then, can you call it the definitive account of the Lockerbie evidence?

That said, the fact that the SCCRC referred the case to the appeal court on no fewer than six grounds, including that the judgment was unreasonable, was a devastating indictment of the Scottish criminal justice system. Not that one would know it from reading your articles. By the way, I note with satisfaction your account of why Mr Megrahi dropped his appeal. In your last Lockerbie article you wrote that his decision ‘has never been properly explained’. Maybe you are, after all, inching towards a better understanding of the case.

Most press reports have focused on the SCCRC’s grounds for questioning the original decision. Those principally concerned the evidence given by Tony Gauci, the owner of the shop in Malta where the clothing found in the bomb suitcase was bought. The SCCRC considered that evidence that was never seen by the defence, particularly concerning reward money offered to Gauci, and the prior disclosure to him of photographs of the accused, might have aided al-Megrahi’s defence.

What is impressive about the document as it considers every aspect of the Lockerbie affair, is the way it systematically disposes of the counter-theories offered by those who are convinced that al-Megrahi was innocent, and that Libya was not involved.

Time after time it examines the various stories that have emerged in the media, suggesting that Iran was the paymaster, that Palestinian terrorists carried out the bombing, that the explosive device was smuggled aboard at Frankfurt or Heathrow rather than Malta, that Abu Talb, a known terrorist, was involved, or possibly a shadowy figure known only as Abu Elias.

It disposes clinically of all of them. It interviews and re-interviews the various figures who have emerged over the years to cast doubt on the operations of the Scottish police or the role of the CIA and reveals their evidence as hollow “speculative, unfounded, unfocused, and unsupported by proper evidence”, as the report puts it. Yet these are the foundations on which the various conspiracy theories about Lockerbie have been laid.

See my last comments. The SCCRC was completely ill-equipped for investigating terrorism. Its investigation of the alternative suspects relied almost entirely on the word of the police and the British intelligence services relied entirely. Many of the claims made in favour of the counter theories have indeed been ‘speculative, unfounded, unfocused, and unsupported by proper evidence’, but many are not. To write them off as conspiracy theories is fatuous and intellectually dishonest. As numerous eminent legal commentators have pointed out, the words speculative, unfounded, and unsupported by proper evidence apply equally to the Crown case and the trial court judgment.  

Today, as grieving relatives remember the disaster that devastated their lives, they might perhaps draw comfort from the fact that, far from this being a case that exposes the failures of Scottish justice, it is one that triumphantly vindicates it.

I doubt that all the relatives will draw comfort from the fact that multiple items of exculpatory evidence were withheld from the trial court, that a UN observer described the guilty verdict as ‘incomprehensible’ and that the SCCRC considered the judgment to be unreasonable. Rather than a triumphant vindication, I think these facts are a terrible scar upon Scottish justice.

As ever, I look forward to your response, but please don’t forget to respond to my original letter.

Best wishes,

John.