Thursday, 19 December 2013

Lockerbie families consider third al-Megrahi appeal

[This is the headline over a report (behind the paywall) in today’s edition of The Times.  It reads as follows:]

British relatives of Lockerbie bombing victims will consider making another appeal against the conviction of the only man found guilty of the atrocity.

Some members of the UK Families Flight 103 group will meet lawyers in the new year to discuss whether to apply to the Scottish Criminal Cases Review Commission (SCCRC), according to Jim Swire, whose 23-year-old daughter Flora died in the bombing in December 1988.

“The intention of some members is to meet with lawyers in January and discuss the best options, the best way to get the truth,” he said. “It’s a disgrace that we have to wait 25 years to get the truth that should be available from our governments.”

The group will also consider whether an inquiry is the best route to get answers. Dr Swire is part of another group pursuing a long-running petition at the Scottish parliament calling for the Scottish government to open a full public inquiry into the conviction of Abdelbaset al-Megrahi.

Last December, Dr Swire said that the family of the convicted bomber could be risking their lives if they were to raise the prospect of a fresh appeal against conviction, possibly leaving it to victims’ families instead.

Dr Swire said that new evidence needed to be investigated, including allegations surrounding a break-in at Heathrow before the bombing of Pan Am flight 103, which killed 270 people in the air and on the ground. “It’s clear following the evidence and the behaviour of certain governments that Megrahi wasn’t involved at all,” he said.

If successful, a new application to the SCCRC could start the third appeal into the conviction. Al-Megrahi lost his first appeal in 2002, a year after he was found guilty of mass murder and jailed for life.

The SCCRC recommended in 2007 that al-Megrahi should be granted a second appeal against his conviction. He dropped the appeal two days before being released from prison in August 2009 on compassionate grounds.

Details of six grounds for referral to appeal were published last year. Four of the reasons refer to undisclosed evidence from the Crown to al-Megrahi’s defence team.

The grounds cover evidence about a positive identification of al-Megrahi by Tony Gauci, a Maltese shopkeeper who said that he had sold clothes to a Libyan man. The clothes were linked to a suitcase loaded on to the aircraft, which was then linked to the bomb and eventually to al-Megrahi.

The SCCRC has raised concerns that evidence suggesting Mr Gauci had seen a magazine article linking al-Megrahi to the bomb had not been passed to the defence. Contradictions about the day al-Megrahi was said to have bought the clothes were also highlighted. The trial was told that they were bought on December 7 but the SCCRC said that Mr Gauci also thought it might have been November 29. [RB: The two dates that were canvassed as real possibilities were 23 November and 7 December.] 

Also of concern to the SCCRC was undisclosed evidence about Mr Gauci’s interest in rewards. The commission said that the defence should have been told that a substantial reward was on offer from the US Government.

This week, Frank Mulholland, QC, the Lord Advocate, announced that Libya had appointed two prosecutors to work on the investigation into the bombing.

[A similar article appeared in yesterday’s edition of The Scotsman, along with an opinion piece by Dr Jim Swire which reads in part:]

Try to imagine what it is like to know that your daughter went, unaware of her danger, through the corridors of an airport which knew that its “secure” airside had been broken into, and knew that there was a high terrorist threat to US aircraft at the time and yet still decided not to investigate who had broken in or what his motive might have been. Then try to imagine that you have tried in every way you can think of for 25 years to get an inquiry into why Lockerbie was not prevented and how things could be improved for the future, and been blocked at every stage.

It also took us until 2012 to get official confirmation – in a letter to me from the former Chief Constable (Dumfries and Galloway police) Patrick Shearer – that the investigating police had had complete files about that break-in in their computer from February 1989. That letter also explained that the file had been passed to the Crown Office before the trial of Abdelbaset Ali Mohmed al-Megrahi had even started. Yet still the prosecutors failed to share their knowledge with the defence.

It is probable that the suppression of this break-in evidence was caused by blind adherence to the hypothesis that the bomb must have come from Malta because of some associated clothing that had indeed originated there. Once a force has formed a strong hypothesis, it takes an earthquake to convince it that other evidence, particularly if hostile to the favoured hypothesis, ought to be shared with the defence. That is a problem we see again and again in miscarriage of justice cases. (...)

The United Nations special observer to the trial (Professor Hans Koechler of Vienna) was in no doubt that it did not represent justice. How could it have done when the break-in information describing an obvious possible avenue for the introduction of the bomb at Heathrow was simply denied to the defence? There were other signs of something far more sinister: Early in 1990, we UK relatives were called to the US embassy in London. In an aside to one of us there, an American official said privately of Lockerbie: “Your government and ours know exactly what happened, but they’re never going to tell.”

Then, in 1993, the late Baroness Thatcher wrote of her support for the 1986 US air force (USAF) raid on Libyan leader Colonel Muammar al-Gaddafi: “It turned out to be a more decisive blow against Libyan-sponsored terrorism than I could ever have imagined…the much vaunted Libyan counter-attack did not and could not take place.” Yet two years before, in 1991, two Libyans had been officially blamed for the Lockerbie bombing. (...)

In the post-Snowden world, we all know how extensive is the reach, even among their own citizens, of US and UK intelligence gathering. What we do not know is what aspects of that intelligence are deliberately hidden from citizens who desperately need access to it in their grief, or indeed why any of it should be kept from them.

We relatives need the truth about who murdered our families and article 2 of human rights legislation guarantees our right to have it. While that truth is hidden, the true perpetrators are protected.

Next year, in the face of the blank refusal of governments to mount any meaningful inquiry, certain relatives will apply to the Scottish Criminal Cases Review Commission for a further appeal against the Megrahi verdict. It is likely that some of us will also pursue other routes to force an honest inquiry out of obdurate governments; 25 years is too long, and we should not be opposed by our own elected governments.

If you look at terrible UK disasters – Northern Ireland and the IRA trials, the Hillsborough disaster and also Lockerbie, it is the denial of truth to the victims that is the common thread. So, indeed, there is a thread and that thread is truth.

[The announcement by the Lord Advocate that Libya had appointed two prosecutors to work on the investigation into the bombing has been widely reported in the media.  Examples can be found here (BBC News); here (The Herald); and here (Dundee Courier).  It is also reported that US and UK investigators are to be allowed to question Abdullah al-Senussi, the Gaddafi regime’s security chief who is currently awaiting trial in Libya. Here are examples from ITV News and from the Libya Herald.

The recently-retired Director of the FBI, Robert S Mueller III, has expressed confidence that others will be charged in connection with the Lockerbie bombing. A report on the BBC News website contains the following:]

In a rare interview, to mark the 25th anniversary of the deadliest act of terrorism in the UK, Mr Mueller said he was confident the ongoing investigation would "continue to produce results".

"We have FBI agents who are working full-time to track down every lead, as we have since it occurred 25 years ago," Mr Mueller said.

"My expectation is that continuously we will obtain additional information, perhaps additional witnesses, and that others will be charged with their participation in this.

"We do not forget. And by that I mean the FBI, the US Department of Justice, we do not forget," he said. (...)

Mr [Frank] Mulholland, Scotland's lord advocate, said on Monday that Libya had appointed two prosecutors to work on the Lockerbie case.

He told the BBC that the Libyans would work alongside Scottish and American investigators and described this as a "welcome development' which he said would hopefully lead to progress in the case.

Robert Mueller said there had been progress since the revolution in Libya and he expected that to continue.

But he acknowledged that violence and instability in Libya was making things more difficult.

"The problem in Libya now is the government is struggling to maintain security and order and bring peace to the country," he said. (...)

Robert Mueller said he was open to new evidence but remained convinced "the proof was solid on Megrahi".

He said: "My expectation is there are others who may well be brought to justice as a result of continuing investigation by both ourselves as well as the Scottish authorities".

Mr Mueller has been involved with the Lockerbie case for more than 20 years.

He was assistant attorney general in the United States in 1991 when indictments were issued for the two Libyan suspects, Megrahi and Al-amin Khalifa Fimah. (...)

Scottish justice secretary, Kenny MacAskill, freed [Megrahi] on compassionate grounds in August 2009 because he had been diagnosed with terminal cancer.

At that time, Robert Mueller wrote a scathing letter to Mr MacAskill in which he said his decision "gives comfort to terrorists around the world".

In his BBC interview, which he said would be his last, Mr Mueller was asked if he had reflected on this intervention.

"My letter still stands," he said.

[Mr Mueller has featured regularly on this blog. The relevant items can be found here.  By contrast, here are some very sensible comments from Rev John Mosey, whose daughter Helga died on Pan Am 103:]

A minister who lost his 19-year-old daughter in the Lockerbie bombing told ITV News the government are "looking in the wrong place" for the perpetrators after UK authorities were given permission to interview Muammar Gaddafi's former intelligence chief.

Reverend John Mosey said he was "very sceptical of any good" coming from the interview with Abdullah Senussi because the link between the 1988 disaster and Libya had been "blown out of the water."

He also added that the new Libyan regime are "desperate to pin it all on Gaddafi."


  1. MISSION LIFE WITH LOCKERBIE, 2013 -- Go on ground to new facts... (google translation, german/english):

    The Libyan Justice Minister Salah Margani has told ITV News that British and American authorities will be allowed to question Muammar Gaddafi's former intelligence chief, Abdullah Senussi, over the Lockerbie bombing.

    Scotland's Lord Advocate, Frank Mulholland, said on Monday that Libya had appointed two prosecutors to work on the Lockerbie case - and the Libyans will work alongside Scottish and US investigators - it was a welcome development.

    Mr Mulholland suppressed Minister Margani's demand, "we all need to know the facts"...
    That means also - that Libya in return want to see the Scottish evidence and factual information against Libya. This will be very tight, for Lord Advocate, because the crucial evidence is a manipulated MST-13 timer fragment (PT-35) and is not from a Timer was delivered by MEBO Ltd - to Libya's military pocurement ! Incidentally: a new forensic investigation, from the Scots is still blocked up today...

    Why fishes Lord Advocate Mulholland not first in his own waters ?
    The technology today is ready that 100% can be proved, that the crucial MST-13 timer fragment (PT-35) consists of 9 or 8 layers of fiberglass and can be proved, within (timewindow +/- 10 days) that the 'PT-35' fragment had trace of powder from a bomb explosion on 21st of Dec. 1988.

    9 layers of fiberglass and traces of explosive powder, can have indicate to Libya ?

    8 layers of fiberglass, with no traces of explosive powder, indicate to a Scottish fatal fraud - against Libya ?

    Why does not try, the new 'operationally Lockerbie Investigation Team' - led by Detective Superintendent Michael Dalgleish, immediately make a new forensically examine of the crucial piece of evidence against Libya, the MST 13 timer fragment (PT-35)? The cost and time efford are very low ...

    The answer is clear: Abdelbaset al Megrahi and Libya have nothing to do with the bombing of PanAm 103, over Lockerbie. The MST-13 Timer Evidence (PT-35) is a Scottish Fraud against the former Gadhafi regime !
    Good future for Libya: "LibyaNow" can then ask back US $ 2.7 billion blood money from Scotland and compensation of approximately US$ 50 billion, for the incurred damage of the UN sanctions.

    by Edwin and Mahnaz Bollier, MEBO Ltd., Telecommunication, Switzerland. Webpage:

  2. Of course there should be a third appeal; the interests of justice scream out for one. Given the standard official response to the effect that the Court of Appeal is the correct forum it’s difficult to see that there would be a successful objection.

    I predict that there will be an appeal, it will be allowed, but that it won’t clarify matters very much. And it will sadly give little comfort to the family and friends of the 271st victim.

    The State will seek to do everything in its power to stop anything coming out that points to the planting of faked real evidence, the suppression of relevant circumstantial evidence, official corruption or indeed any unsavoury conduct on the part of former inhabitants of the Crown Office, some of whom have moved on to greater things. It can do this by arranging that the appeal will be heard in stages, starting with the basic question of sufficiency of the evidence heard at the original trial. One aspect of this alone, namely the lack of evidence of how the bomb negotiated the proven tight security at the airport in Malta is enough for an acquittal (it’s as tragic as it’s inexplicable that this wasn’t argued at the first appeal).

    This isn’t just my own view as a former solicitor – it’s shared by all the lawyers I have spoken to who’ve actually read the report of the trial. For example some years ago one senior sheriff, now deceased,told me that had he tried the case he would have readily upheld a submission that there was no case to answer.

    Allowing an appeal on this ground at an early stage would make it unnecessary for the other grounds to be heard. The Crown Office would then use the excuse of having an ongoing investigation to shut down any further demands for a public inquiry.

  3. One aspect of this alone, namely the lack of evidence of how the bomb negotiated the proven tight security at the airport in Malta is enough for an acquittal (it’s as tragic as it’s inexplicable that this wasn’t argued at the first appeal).

    Fascinating viewpoint, Ewan, and a point I have long pondered. The trial judges airily remarked that Wilfred Borg's evidence didn't exclude the possibility of the security being circumvented. This was disingenuous in the extreme. Borg was simply backed into a corner by a question asking in the most general terms whether it was even conceivable whether someone could possibly, in some unspecified manned on some unspecified date, circumvent the security. No honest person could possibly reply "no" to that.

    The point that was never really brought out was that there appears to be no conceivable way that security could have been circumvented in relation to KM180 on 21st December 1988, and leave no evidence after the fact to show that it had been done. There are several ways a determined terrorist might have got a bomb on a plane at Malta, but all of them would leave evidence in the paper-trail.

    Unless - ALL the paperwork was forged. An undertaking which would have required a conspiracy involving a substantial number of Air Malta staff, probably including Borg himself. There is absolutely no evidence at all that this happened. Nevertheless one can only surmise that this allegation was what was in the minds of the appeal judges when they waved the same objection aside, equally airily, with "it has to be remembere that the Crown case was that this had been done by a criminal act". A criminal act for which there was no evidence at all, but we'll just assume it happened so we can jail someone.

    I'm probably too simple-minded for all that, but I really don't see why this wasn't advanced at the first appeal in far stronger terms. Instead, Taylor seemed content to repeat his original rather weak submissions and hope the apeal judges would come to a different decision.

    However, we've got beyond that now. Analysis of the recovered suitcase debris, which wasn't done by the forensics officers at the time (and we really have to ask why not), shows without a doubt that the bomb was in the "Bedford suitcase", that is it was introduced at Heathrow. That wipes out the Malta theory positively, rather than negatively.

    They can't sweep that under the carpet now. The geni is out of the bottle. And I don't see how they can avoid an inquiry into how the original investigation fouled that up quite so badly. And the rest rather follows on of course.

  4. There are remarks in the appeal court judgement suggesting that if Taylor had argued the point it might have been upheld. People in Scotland, as well as abroad don't get how hung up our procedure is on written pleadings, with almost a medieval adherence to form over substance. In contrast in most other countries, especially in the States, appeal court justices will consider themselves not only free but to have a duty to explore the whole case. I think this underlies a lot of the remarks we read about 5 judges having approved the verdict, when in truth they simply weren't persuaded on the limited issues canvassed before them.

    I agree things have moved on. I have a copy of the book on order.

  5. I noticed that about the appeal judges too. They say they haven't been invited to consider that no reasonable court, properly directed, could have come to certain conclusions, so they don't need to pass judgement on that. The subtext that if they had been asked, that might have been a different story, is absolutely palpable.

    Hans Kochler was appalled by the appeal, thinking that Scotland had no effective appeal procedure at all. I don't think he "got" that the appeal had been brought on the wrong grounds.

    The more the implications of what I figured out sink in, the more appalled I am. Although a lot of significant information was not put before the court, there was in fact enough there even in 2000 to demonstrate that the Bedford case was at the very least extremely likely to have been the bomb.

    The court had the data that shows the blue Tourister was on top of the bomb suitcase - Hayes read it out. It was also agreed that there was only ONE suitcase showing a pattern of damage consistent with its having been loaded flat against the bomb suitcase - the Tourister. So how certain was the forensic opinion that there had been another case under the bomb suitcase? Oh wait....

    The forensics officers, Hayes in particular, just stood up in the witness box and read out a load of meticulously recorded and described raw data, without the slightest attempt to interpret it. It was a treasure trove that should have been strip-mined for every inference it was capable of bearing. They failed, utterly and absolutely. Of course, the full dataset shows the Bedford case to have been the bomb, definitely.

    They left a bunch of lawyers (sorry) to cherry-pick and misrepresent the data in any way they thought might benefit their side of the case. In the midst of that, nobody "got it". (Or if the prosecution did, and the precise nature of the evidence they chose not to present to the bench does make you wonder, they didn't admit it.) The defence totally didn't get it. They had all the evidence needed to prove both defendants completely innocent, right there in their hands, and they didn't realise.

    Sometimes I could just cry.