Tuesday, 8 November 2016

Permeated with failures to assuage reasonable doubt

[What follows is excerpted from a long commentary by Dr Jim Swire that first appeared on this blog on this date in 2010:]

Following some 18 months of official investigation immediately after the disaster, the finger seemed to point to Iran, seeking revenge, by using a Syrian terror group as mercenaries. having lost an airbus containing some 290 individuals shot down by a US missile cruiser six months before Lockerbie, the captain of the cruiser being presented with a medal following his return to the USA.

Then suddenly in late 1991 indictments were issued simultaneously in Edinburgh and Washington against two of Libya’s citizens.

There followed for the relatives years of hard work attempting to persuade Libya to allow the two to be tried under Scots law. These efforts were strongly supported by the then Professor of Scots at the University of Edinburgh, Robert Black QC and by Nelson Mandela, and many others, but involved multiple trips to talk to Colonel Gaddafi. The first of these was made by myself alone and in great fear, but two others were made jointly with Professor Black, who was himself the originator of the ‘Scottish court in a neutral country' concept.

Together with one other UK relative, I watched the whole of the evidence unfold at Zeist, and though only a layman, to my amazement as the case unfolded it seemed to me that the evidence was failing to support the involvement of either of the accused in the atrocity, let alone the island of Malta as the point of origin of the bomb. The second Libyan suspect, Mr Khalifa Fahima, was accused of conspiring with Mr Megrahi to cause the disaster but was found Not Guilty: a remarkable finding in view of the availability of the Scottish verdict of Not Proven.

Then came the evidence of a German forensic officer who explained to the court the nature of bombs found in the hands of a terror group, but not all confiscated, in Germany, two months before Lockerbie. He explained that the bombs were of Syrian provenance, from an Iranian linked terror group, the PFLP-GC in Damascus. He also carefully explained how these bombs, specifically designed to destroy aircraft in flight, were capable of introduction to an airport well in advance of their actual use. He explained too that put into an aircraft they would always explode between 35 and 40 minutes after take-off, by sensing the drop in air pressure, but that they were inert on the ground indefinitely. They were not adjustable. They came predicated always to explode 35-40 minutes after take-off.

Yet these devices could not have arrived by air from Malta as they would have exploded en route. From that point on, and knowing that the flight time for the Lockerbie aircraft had been 38 minutes, I found it hard to believe that Mr Megrahi, allegedly using a sophisticated digital timer from Malta, had risked his device passing through an Air Malta flight, changing planes at Frankfurt and then changing planes again at Heathrow, only to have it explode 38 minutes after take-off from Heathrow as the Lockerbie flight did. Why would he not set it to explode over mid Atlantic since the timing of the device he was alleged to have used was fully under his control? Why risk this devious route those two changes of airplane and so short a flight time out of Heathrow?

But the FAI had told us to assume that the bomb had been flown in from Frankfurt. What were the chances of a simple time-bomb from Malta happening to explode at just the same time after take-off from Heathrow as one of those described by the German forensic officer to the court would have been obligated to do? The hearings seemed permeated with failures to assuage reasonable doubt: a prerequisite supposedly for reaching a guilty verdict under Scots criminal law

There were great difficulties particularly surrounding the evidence given by Toni Gauci, a Maltese shopkeeper alleged to have sold a tranche of clothing later found at the crash site to Mr Megrahi, who he could only say ‘looked a lot like the buyer of the clothes’. The evidence of identification never looked to be of the standard required to incriminate the real perpetrator, yet it was the only supposedly secure proof of Mr Megrahi’s involvement in Malta, there being no evidence to lead as to how he was supposed to have breached security at Luqa airport on the island. Such difficulties and many others will be central to any inquiry into this trial.

It is significant that Professor Black has repeatedly stated that the events and evidence heard in the Zeist trial court itself present difficulties which should have ruled out a guilty verdict under Scottish criminal law, even without reference to events since the verdict was reached. Unlike my lay status, his is a powerful persuasive and professional voice claiming the need for the whole court process to be reviewed if we are to be certain whether justice was delivered for Mr Megrahi or not. Only a few others were prepared openly to express their doubts at first, but re-examination of the evidence and trial transcripts has increased doubts over the validity of the verdict for a number of highly qualified lawyers since. Gareth Peirce, one of Britain’s most respected human rights lawyers is an excellent example of this. Her article in the London Review of Books 'The framing of al-Megrahi' is well worth reading.

After three years of study the Scottish Criminal Case Review Commission (SCCRC) publicly stated that the trial might be a miscarriage of justice, massively increasing the doubts in the minds of many Scots both within and without our legal community.

Yet the current publicly expressed position of the Scottish Justice Minister and of our First Minister is that they have no doubts concerning the verdict. It is not apparent why they should be considered a more reliable source than the SCCRC, whose special task it is to decide such issues, and which spent so long in careful professional examination of this case.

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