Lockerbie and the search for truth

[This is the headline over an article by Dr Morag Kerr just published in the first issue of the new online magazine iScot (pages 11 to 18). The following are excerpts. The original online version contains helpful photographs and illustrations:]

The summer of the independence campaign saw a few important news items relegated to minor footnotes, not least in June when the application for a new appeal against the conviction of Abdelbaset al-Megrahi for the Lockerbie bombing was finally submitted to the Scottish Criminal Cases Review Commission. 

The application has been the culmination of a huge amount of work not just by lawyers but by many people interested in the case and it concentrates on four main aspects.

Firstly, the contention that the identification of Megrahi as the man who bought the clothes packed in the suitcase with the bomb was fatally flawed. 

This point was the centrepiece of the previous appeal which was abandoned when Megrahi was granted compassionate release. Although the trial judges described the identification as “not absolute” they controversially decided he had been the purchaser anyway. Information acquired by the SCCRC in 2006 however showed that the clothes had been bought on a day when there was no evidence he had been anywhere near the shop in question. 

Secondly, the application highlights an entirely new analysis of theforensic evidence, never beforepresented in court. The new evidence shows the suitcase containing the bomb was one which was seen in the baggage container at Heathrow airport an hour before the connecting flight from Frankfurt landed. This utterly destroys the Crown case, which relied on the bomb suitcase having been transferred from the Frankfurt flight. 

Then there is the evidence relating to the metallurgical composition of the fragment of printed circuit board designated PT/35b. This fragment was believed to be part of the timing mechanism of the bomb, and the Crown alleged that it came from a digital timer of a type made exclusively for the Libyan military, of which only 20 had ever been delivered. 

However, a crucial discrepancy in the analysis of the metallic coating on the circuitry demonstrates that PT/35b was not made by the manufacturer who made all the items supplied to Libya. 

And lastly, the sheer amount of evidence not disclosed to the defence which would have been very helpful to the accused and in some cases exculpatory. This covers not just the infamous “secret intelligence report” which David Miliband slapped a Public Interest Immunity Certificate on in 2008, but a number of other documents including one which would have allowed the defence to understand the problem with the metallurgical analysis of the PCB fragment at the time of the original trial. 

This case has the distinction of being the first in Scotland in which published books have formed part of an application. Selected chapters from John Ashton’s 2012 (...) Megrahi: You are my Jury, have been submitted to the SCCRC in support, as well as the entirety of my own 2013 book, Adequately Explained by Stupidity? 

The initial draft of the application was prepared by Robert Black, emeritus professor of Scots Law at the University of Edinburgh, who has a long standing involvement in the case and has believed for many years that the conviction was a miscarriage of justice. In a highly unusual move it is being submitted in the names of about two dozen relatives of Lockerbie victims, in addition to several close relatives of Megrahi himself. Aamer Anwar, the campaigning human rights solicitor and well-known advocate of independence is acting on their behalf. 

Prof Black commented that any one of the four points enumerated above, if upheld, would be sufficient to have the conviction overturned. He also notes that the second point, the one relating to the arrangement of the luggage in the baggage container, is in a different category from the others. 

To have a conviction overturned it is sufficient to show that a miscarriage of justice may have occurred. That’s not quite the same as proving that the accused didn’t do it, as some exonerated defendants have found to their cost. In England at least, in order to be awarded compensation for wrongful imprisonment the appellant must be shown to be “clearly innocent”. 

The suitcase positioning fulfills that criterion by showing the crime could have happened at Heathrow airport, in the afternoon, at a time when Megrahi was verifiably in Tripoli and not at Malta's Luqa airport in the morning when he was catching his flight home. It provides him with a complete alibi. (...)

If this point of appeal is upheld, the Crown Office will be in an invidious position. The charade of the Malta crime-scene will no longer be tenable. The investigation will have been shown to have been off the rails from its earliest weeks, and to have pursued a red herring down a blind alley rather than seeking the real terrorists in London that afternoon. Undoubtedly some faces will be very red. 

However, there’s a long way to go before that point is reached. First, the SCCRC have to agree that there are indeed grounds forappeal contained within the submission it has received. Not only that, a new hurdle has to be cleared which didn’t exist at the time the previous leave to appeal was granted in 2007. 

As part of the legislation arising out of the Cadder case (relating to the right of a suspect to have a lawyer present during questioning) a provision was introduced into Scots Law requiring not only that there should be grounds for believing that a conviction might amount to a miscarriage of justice, but that there must be compelling reasons to override the assumed desirability of having “certainty and finality” at the end of a legal process.

While it’s true the legal system had no desire to be swamped by hordes of lowlifes appealling petty theft convictions because they had been denied access to a lawyer when  they were first questioned by police, this is a big deal with far wider ramifications. As it now stands, Scots Law can declare that it doesn’t matter if there are compelling grounds for believing you were wrongly convicted of murder, because it’s more important that a line should be drawn. And pity help you if you’re on the wrong side of that line. 

Not only does the SCCRC itself have to be satisfied that “certainty and finality” should be overruled, the appeal judges themselves have the option of refusing to hear the appeal if they disagree with the SCCRC on this point. 

The Scottish government has repeatedly declared that the only place to resolve the ongoing running sore of the doubts over the Lockerbie conviction is in the courts, by way of another appeal. Ministers have intimated their unconditional support for such a move, virtually challenging the bereaved relatives who harbour these doubts to “bring it on!” Well, crunch time is approaching, albeit at the speed of continental drift. Will the government get its wish to have this all cleared up in open court, or will someone, somewhere, wield the dreaded “certainty and finality” ban-hammer over the process? 

It’s now five months since the application was submitted to the SCCRC. At some point the deliberations have to end and a report will emerge. How that is received will be a huge test of our criminal justice system, and incidentally of our new justice secretary.