Thursday, 21 May 2015

A smear on the quality of Scottish justice

[Miscellaneous media comments from 21 May 2012, the day following the death of Abdelbaset al-Megrahi:]

Despite what the Prime Minister says, Megrahi’s guilt is not certain. As Ian Smart suggests, there is little consensus even amongst those best informed about the case. This was not a "slam-dunk" case. Far from it. The evidence for guilt or innocence is a close-run thing whichever side of the argument you choose to take. Moreoever, it is possible to be convinced the Libyans were responsible for Lockerbie while also suspecting that the evidence against them was only barely strong enough to secure a conviction. Indeed the layman might reasonably conclude that if ever a case made an argument for the Not Proven verdict, Lockerbie is that case. (The various appeals, remember, are a test of the evidence against Megrahi not of his actual guilt.)
Even so, one should not assume that the Scottish Criminal Case Review Commission’s report would have led to Megrahi’s conviction being overturned. This too makes Megrahi’s cancer as unfortunate as it may have been darkly convenient. Though Lockerbie is still, as the First Minister pointed out yesterday, a live case the prospects of getting a fully persuasive resolution to the bombing of Pan-Am 103 seem pretty bleak.
The vengeful pursuit of Megrahi, the feeling that he has somehow escaped justice by not actually dying in a cell, is the result of a genuine belief by some that he was guilty, allied to anger that his release was part of the many dodgy deals between the British government and Muammar Gaddafi's regime. Yet there are cogent reasons why so many others, including members of bereaved families such as Dr Jim Swire who lost his daughter Flora in the bombing, have been convinced that Megrahi's conviction was a miscarriage of justice.
Soon after the destruction of Pan Am flight 103 American and British officials were busy laying the blame on the Iran Syria axis. However, after Iran and Syria joined the US-led coalition against Saddam Hussein in the first Gulf War the same officials switched the blame to Libya, at the time very much a pariah state.
The trial of Megrahi and his fellow Libyan defendant Lamin Khalifa Fhimah at a specially constituted Scotttish court at Camp Zeist in the Netherlands came under criticism from international jurists. The two men were effectively charged with joint enterprise, yet only Megrahi was found guilty. The prosecution evidence was circumstantial; details of the bomb timer on the plane contradictory and the testimony of a key witness, a Maltese shopkeeper, shaky under cross-examination.
The evidence of a supposedly prime "CIA intelligence asset", codenamed "Puzzle Piece" who turned up in a Shirley Bassey wig, was widely viewed as risible. It emerged later that important evidence had not been passed on to the defence lawyers.
Professor Hans Köchler, a UN appointed legal observer, described the proceedings and a subsequent failed appeal by Megrahi as "inconsistent, arbitrary and a spectacular miscarriage of justice".

The Libyan's second appeal was on the basis of new evidence, after the Scottish Criminal Cases Review Commission ruled that there were six grounds for appeal. Details from the report have been printed in The Herald and the full report has been published online by our sister title the Sunday Herald. The grounds raise serious doubts about much of the forensic evidence on which the conviction relied as well as the veracity of the key witness, Tony Gauci, a Maltese shopkeeper, who is said to have been paid a substantial reward for his assistance in the investigation. Crucially, evidence that might have helped clear Megrahi was not shared with the defence. The second appeal was withdrawn when he was released on compassionate grounds in 2009, following his diagnosis of terminal prostate cancer. Regardless of whether he is innocent or guilty, there are grounds for a conclusion that he should not have been convicted and that a second appeal would have come to that conclusion.
Megrahi's death must not end the search for the truth. One option appears to be the possibility of one of the bereaved relatives taking up the appeal. Another would be for the Scottish or UK government to institute a judicial inquiry. This would be long and expensive but we cannot put a price on justice. A country can be judged by the quality of its judicial system. This case leaves a smear on the quality of Scottish justice that needs to be either contradicted or belatedly put right.
The example of the Bloody Sunday Inquiry shows that even long after the event, it is possible to put together a detailed narrative of an event that answers many outstanding questions and brings a measure of closure to the relatives of those who lost their lives. Even if Megrahi was guilty, he cannot have acted alone. If it is possible to identify those involved, they must be brought to justice. Those who in the name of some perverted political ideology would massacre innocent civilians need to know that they can run but they cannot hide.
Of course, part of the problem is that several foreign governments and groups may have had a hand in this atrocity and without regime change in those countries, they are unlikely to come clean. Early evidence pointed to a Palestinian group and both Iran and Syria have been suspected of involvement. After all, they had a motive: retaliation for the shooting down of an Iranian passenger jet by the American warship USS Vincennes in July 1988. That is no reason for not attempting to get to the bottom of what happened. In the short term, the most likely source of new information is Libya itself, where the new government has a vested interest in exposing the sins of the Gaddafi regime and any international links with other sponsors of international terrorism.

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