Doubts over new Lockerbie trial

[This is the headline over a report published on the website of The Independent on this date in 2011:]

Experts cast doubt on claims yesterday that the Libyan airline employee cleared of the Lockerbie bombing could stand trial under double jeopardy laws.

Al-Amin Khalifa Fhimah was found not guilty of assisting his friend and colleague Abdelbaset al-Megrahi in planting the bomb on board Pan Am flight 103 in 1988 that claimed 270 lives.

Families of those who died had said they hoped that a new prosecution could shine fresh light on the case following the original trial at Camp Zeist in the Netherlands in 2001.

But Professor Robert Black QC, the architect of the legal process which led to the conviction of Megrahi, said it was highly unlikely that a new unit set up to examine unsolved cases under Scottish Lord Advocate Frank Mulholland, would go ahead with a prosecution.

[RB: Almost six months later speculation was still rife about the possibility of the Crown’s seeking to re-indict Fhimah. I commented at the time:]

I would be astounded if prosecutors sought to re-indict Lamin Fhimah.  The Crown Office is just as aware as the rest of us are that the astonishing thing about the Zeist trial was not the acquittal of Fhimah but the conviction of Abdelbaset Megrahi.  Any "new evidence" that has emerged since 2001 points clearly towards the innocence of the accused Libyans rather than their guilt, as the Scottish Criminal Cases Review Commission amongst others has pointed out. 

Vital evidence on Lockerbie was withheld

[This is the headline over a report by Lucy Adams that was published in The Herald on this date in 2012. The following are excerpts:]

Evidence which could have undermined the prosecution's case in the Lockerbie trial was withheld by police for a decade, a chief constable has revealed.

Statements about a break-in at Heathrow airport just hours before the December 1988 bombing were kept by Dumfries and Galloway Police until 1999.

A letter from Pat Shearer, the current chief constable of the force, has finally admitted the police delay.

Mr Shearer also reveals the Crown Office knew about the break-in before the trial, but failed to tell the defence team.

Since 1991, police and prosecutors team had maintained the bomb which exploded on board Pan Am 103 over Lockerbie – killing 270 people – was placed on a flight from Malta, rather than at the London airport. This underpinned the case against Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the bombing in 2001.

Dr Jim Swire, whose daughter Flora died in the atrocity, believes the revelations would have undermined the trial. If the bomb was taken on at Heathrow, and had this information been shared, Dr Swire believes the investigation would have pointed elsewhere. (...)

Dr Swire said: "The evidence of barometric devices from Syria was rejected because they would have to have been put on the flight at Heathrow. We did not know then about the break-in.

"If it had been known about before the trial there would have been no prospect of getting a conviction. It has relevance to the foundations on which Mr Mulholland bases his approach to the interim Government in Libya, since the intention of his investigation still seems to be to link the conviction of Megrahi to the survivors of the Gaddafi regime. What about looking elsewhere?"

Mr Shearer's letter states no "suppression of evidence took place" but points out Dumfries and Galloway investigated the break-in in January 1989 and did not pass statements – including those from Ray Manly, then head of security at Heathrow's operators BAA – to the Crown until 1999.

The letter also reveals the Crown did not share this information until after Mr Manly himself approached the defence team in 2001.

A welcome departure

[What follows is an item posted on this date in 2016 on Dr Jim Swire and Peter Biddulph’s Lockerbie Truth website:]

Scotland's Lord Advocate [Frank Mulholland] is to step down from his position as Scotland's leading law officer. Click here for more…

His decision comes just days after a media conference held in Edinburgh's Dynamic Earth conference centre on 16th March, chaired by representatives of Justice for Megrahi.

At that conference there were calls for the Lord Advocate to consider his position, following a special police investigation - Operation Sandwood - into allegations of criminality [by police and prosecutors] and a key forensic witness during the Lockerbie trial of Libyan Baset al-Megrahi.

It is understood that the Operation Sandwood report will be available for consideration in approximately two months time. [RB: It is now expected later this year. Justice for Megrahi's liaison group has regular meetings with the investigation team and is confident about the rigour of the complex investigation.]

Recently in an unusual move, the National Scottish Police Force has appointed an independent QC to advise it on the Sandwood inquiry because it felt unable to ask Crown Office lawyers to assess the evidence of alleged wrongdoing against certain Crown officers.  Click here for more on this story.

Al-Megrahi was convicted in 2000 for the Lockerbie bombing, in which 259 passengers and eleven townspeople were killed by a bomb placed on flight Pan Am 103.

[RB: Frank Mulholland QC was installed as a judge of the Court of Session and High Court of Justiciary on 15 December 2016. His disgraceful comments about Justice for Megrahi’s criminality allegations gravely compromised the Crown Office’s position in relation to Operation Sandwood.]

Fresh look at Lockerbie report 'would honour memory of Tam Dalyell’

[This is the headline over a report by Greg Russell in today’s edition of The National. It reads in part:]

The Crown Office has been urged to honour the memory of Tam Dalyell by ensuring that a police report into criminal allegations against those involved with the Lockerbie investigation and subsequent trial is given an “objective analysis”.

Iain McKie, a leading member of Justice for Megrahi (JfM), whose members believe Libyan Abdelbaset al-Megrahi was innocent of the bombing, was speaking to The National after our sister paper the Sunday Herald published details of Dalyell’s last interview.

In it, the former Labour MP said he would go to his grave believing Megrahi’s conviction was a “massive injustice”. (...)

Dalyell, who formerly represented Linlithgow, died last week, and was convinced Megrahi was innocent.

“I had great admiration for Tam Dalyell,” said McKie. “I really respected the way he stood up for his principles, and Lockerbie of course was one of the biggest he stood up for.

“It’s a major loss when you lose someone of the integrity and standing of Tam Dalyell.”

McKie said that while the MP’s death was a loss for JfM, it would also keep Lockerbie in the public eye, although he did not think it would affect the Operation Sandwood report on the group’s nine criminal allegations against police, Crown Office officials and forensic scientists involved in the Lockerbie investigation and trial.

He said: “It’s an awful thing to say in the tragedy of someone dying, but when something like this happens it keeps whole Lockerbie case open. It says that even in death he is speaking out to people and saying he believed in the innocence of Megrahi and he continued to believe in that until his dying day.

“It won’t directly affect the police report, but I think it affects the atmosphere in which it will be received and one would hope it would make the Crown Office open their eyes for once and realise that this is an issue which does matter to people; and when they receive the Operation Sandwood report that they give it an objective and fair look, because certainly the previous Lord Advocate had made up his mind that wasn’t going to happen.”

McKie said JfM hoped that Lord Advocate James Wolffe, QC, who replaced Frank Mulholland last summer, would ensure Sandwood was considered “objectively”.

“People like Tam Dalyell have held it close to their heart for many years – and there are others like him – and the Crown Office could honour him by ensuring that the police report gets an objective analysis,” said McKie.

Meanwhile, The National understands that Megrahi’s wife Aisha is likely to lead a new appeal by the family to clear his name, and is preparing to lodge a dossier of documents with the Scottish Criminal Cases Review Commission.

The commission had ruled in 2007 that there were several grounds that a miscarriage of justice may have occurred.

The Megrahis will be backed by British relatives of those who died in the bombing.

However, Glasgow lawyer Aamer Anwar, who has represented the Megrahi family, yesterday would not comment on the move.

He said: “I can only say that things are at a highly critical and sensitive stage and it would be inappropriate to comment at the moment.”`

Let a full public inquiry be held

[What follows was originally posted on this blog on this date in 2013:]

Lockerbie appeal grounds show that the Scottish judiciary is not infallible

[This is the heading over two letters published today in The Herald.  They read as follows:]

You allude to the fact that grave disquiet about the handling of the Megrahi case continues ("New plea by LibDems for Lockerbie public inquiry", The Herald, January 3).

The concerns that Britain's worst terrorist atrocity may additionally have become Scotland's greatest miscarriage of justice are now so deep-seated that a full public inquiry is required to establish the truth and restore faith in the justice system.

That view is not shared by the legal establishment. Last month, Frank Mulholland, the Lord Advocate, went on public record and stigmatised those who question the validity of the Lockerbie verdict as "conspiracy theorists".

In support of his contention, he alluded to the number of judges (the trial judges and the appeal court judges) involved in the case and, in effect, concluded that the verdict was therefore unassailable.

Others, with perhaps a more sophisticated grasp of elementary logic, could point to the number of grounds which were used by the Scottish Criminal Cases Review Commission to justify the case being referred back to the Court of Criminal Appeal and conclude that Scotland's judges are not necessarily deities.

Thomas Crooks

Edinburgh

I cannot agree with Christopher Frew, who is opposed to the holding of a public inquiry into the Lockerbie case because it would upset US public opinion (Letters, January 4). Far too many questions hang over the conviction of the late Abdelbaset Ali Mohmed al Megrahi for the horrific bombing of PanAm Flight 103 over Lockerbie, and these questions will not go away.

If Megrahi was innocent, justice demands that his name must be cleared for the sake of his family, for all the bereaved families, and for the reputation of the Scottish justice system.

Anything less than the truth should be unacceptable to the public on both sides of the Atlantic. Let a full public inquiry be held and the true facts be known.

Ruth Marr

Stirling

Can Crown Office vested interests be overcome?

[What follows is excerpted from a report in today’s edition of The National:]

Scottish politicians have a duty to find out the truth about the Lockerbie bombing, according to a member of Justice for Megrahi (JfM), the group that believes Abdelbaset al Megrahi, the only man convicted of the atrocity, was innocent.

Iain McKie’s comments came two days ahead of the 28th anniversary of the bombing of Pan Am Flight 103, in which 270 people died, and as JfM wrote to the new Lord Advocate James Wolffe QC, urging him to ensure the Crown Office gives “independent and objective consideration” to a Police Scotland report into the group’s criminal allegations.

McKie told The National the report – Operation Sandwood – which is more than a year late, was unlikely to be released until next year.

He said: “It won’t be this year and we’re looking at the early part of next year, which gives us breathing space to some extent to get the matter looked at properly.

“James Wolffe is a new man on the block and has no previous associations with Lockerbie. You’ve got to trust the man’s integrity until you find out otherwise, but there’s no doubt the previous incumbent Frank Mulholland was totally prejudiced and biased against the inquiry and made this publicly clear.

“Wolfe is not – he’s not been previously tainted with Lockerbie and therefore we’ve got to trust him. The issue is whether he can overcome the vested interests within the Crown Office that might want to brush this under the carpet.”

The basis of JfM’s case is the belief that the conviction of Megrahi in 2001 was a miscarriage of justice, and they have pressed for an independent inquiry into it.

[RB: The full text of JfM’s press release can be read here.]

Lockerbie Bombing: ‘Case Closed’ Says Libya’s Justice Minister

[This is the headline over a report that appeared in The Huffington Post on this date in 2011. It reads as follows:]

Scottish prosecutors’ hopes of help with their investigation into the Lockerbie bombing look set to be dashed after Libya’s interim justice minister reportedly said “the case is closed”.

Lord Advocate Frank Mulholland QC has requested that Libyan authorities hand over any information that could lead to a second trial over the atrocity, which killed 270 people in December 1988.

Abdelbaset al-Megrahi is the only person to have been convicted of the bombing of Pan Am Flight 103, which exploded over Lockerbie.

But according to reports, Libya’s interim justice minister Mohammed al-Alagi, responding to news of the request, told a press conference: “The case is closed.”

The Crown Office declined to comment on the interim justice minister’s comment.

Prosecutors are seeking assistance from Libya’s National Transitional Council (NTC) to gain evidence that could lead to the conviction of others involved in the atrocity.

Earlier a Crown Office spokesman said that it accepts that Megrahi “did not act alone” and it is hopeful recent developments in Libya will mean the country will assist with the inquiry.

He said: “The trial court accepted that Mr Megrahi acted in furtherance of the Libyan intelligence services in an act of state-sponsored terrorism and did not act alone.

“Lockerbie remains an open inquiry concerning the involvement of others with Mr Megrahi in the murder of 270 people.

“The Crown will continue to pursue lines of inquiry that become available, and following recent events in Libya, has asked the National Transitional Council, through the Foreign and Commonwealth Office, for assistance with the investigation.”

Evidence cast doubt on Gauci’s identification of Megrahi

[Print and broadcast media yesterday and today offer lots of reports about the death of Maltese shopkeeper Tony Gauci. What follows is excerpted from the report in today’s edition of The National:]

A Maltese shopkeeper whose evidence helped secure the conviction of Abdelbaset al-Megrahi for the Lockerbie bombing has died at the age of 75. Tony Gauci was said to have died from natural causes.

He ran a clothes shop in Malta at the time of the bombing in December 1998, and claimed Megrahi had bought clothing there that was found wrapped around the bomb that brought down Pan Am Flight 103, killing a total of 270 people.

Gauci’s evidence helped secure the conviction of Megrahi, a former Libyan intelligence officer, but doubts have been raised about his reliability.

Megrahi was convicted in 2001, but maintained his innocence until his death in 2012, three years after the Scottish Government released him from a life sentence on compassionate grounds.

Gauci was reportedly paid a $2 million reward for evidence against the only man convicted of the atrocity.

The Libyan lost an appeal against his conviction in 2002. Then, in 2007, the Scottish Criminal Cases Review Commission (SCCRC) found six grounds where it was believed a miscarriage of justice may have occurred, paving the way for a second appeal.

The commission questioned evidence about the date on which the prosecution said the clothes were bought from Gauci’s shop.

The SCCRC also said evidence that cast doubt on Gauci’s identification of Megrahi had not been made available to the defence – in breach of rules designed to ensure a fair trial.

There was also evidence that four days before he identified Megrahi, Gauci had seen a picture of him in a magazine article about the bombing.

Megrahi dropped a second appeal in 2009 before being released due to his terminal prostate cancer.

In his last interview, he insisted he had “never seen” Gauci and had not bought clothes from him.

In 2014 the then Lord Advocate, Frank Mulholland, reaffirmed his belief in Megrahi’s guilt. (...)

In a statement, the campaign group Justice for Megrahi (JfM), told The National: “JfM members are sad that Mr Gauci has passed away.

“While he will no longer be able to appear in person as a witness, under the Criminal Procedure Scotland Act 1995 all the statements he has previously given to the police and prosecution are likely to be admissible during any future court proceedings.

“All of these statements have of course been available to the ongoing major police inquiry, Operation Sandwood.”

Aamer Anwar, the Glasgow lawyer who acts for the Megrahi family, told The National: “Tony Gauci went to his grave knowing that he had always been accused of falsifying his evidence to convict al-Megrahi who until his dying breath maintained he was innocent.

“It is sad that we were unable to test his ‘unreliable identification’ evidence at appeal, however the Megrahi family remain determined to return to court one day to overturn the conviction of their father Abdelbaset al-Megrahi.”

George Thomson, who worked for Megrahi’s defence team, said the Libyan would look forward to meeting his accuser.

He told The Times of Malta: “When I last spoke to Baset on his deathbed he spoke of the day that he and Tony might meet in another place, where Tony would have to face him and answer for the lies he said against him.

“I personally hope that Tony is in a better place and that he is now at peace because he must have led a tortured life knowing that he had jailed an innocent man for money.”

Past sell-by date for Lockerbie justice?

[What follows is an item originally posted on this blog on this date in 2011:]

No sell-by date on justice, promises Lord Advocate

This is the headline over a report in today's edition of The Herald. For a brief instant, it crossed my mind that the promise might have some relevance to the Lockerbie case, the miscarriage of justice suffered by Abdelbaset Megrahi and the ongoing quest for truth and justice pursued by relatives of Lockerbie victims, such as Jim Swire, John Mosey, Matt Berkley and Marina Larracoechea. But no. The Lord Advocate's pledge is confined to "cold cases" where there has been no conviction.

In his press statement Frank Mulholland QC says:

“Justice will pursue down the years those who have so far evaded detection for their crimes. The passage of time should be no protection. No-one should escape the consequences of their criminality and the grief this brings to victims and their families.”

Would that that were true in the Lockerbie case.

[RB: And five years later, we are still waiting for justice. Perhaps the appointment of a new Lord Advocate will hasten its achievement.]

James Wolffe becomes Scotland’s most senior law officer - and is urged to look into Lockerbie case

[This is the headline over a report in today’s edition of The National. It reads as follows, accompanied by a legal commentator’s analysis:]

The Dean of the Faculty of Advocates James Wolffe QC is to become Scotland’s most senior law officer in succession to Frank Mulholland QC who is stepping up to be a judge.

First Minister Nicola Sturgeon has recommended the appointment of Wolffe as Lord Advocate and senior advocate depute Alison Di Rollo as Scotland’s new law officers, the latter becoming Solicitor General.

News of Wolffe’s recommendation was welcomed by Professor Emeritus of Scots Law at the University of Edinburgh Robert Black who has urged him to look into the Lockerbie bombing case. The Scottish Criminal Bar Association has also welcomed him.

Di Rollo succeeds Lesley Thomson, who was appointed to the post in 2011, and who has informed the First Minister that she wishes to pursue new challenges.

The appointments will be made by the Queen on the recommendation of the First Minister, with the agreement of the Scottish Parliament. The appointments, if approved, will complete the First Minister’s newly-appointed ministerial team.

The Lord Advocate is a Minister of the Scottish Government and acts as principal legal adviser, but decisions by him about criminal prosecutions and the investigation of deaths are taken independently of any other person.

The Solicitor General is the Lord Advocate’s deputy. She assists the Lord Advocate to carry out his functions and is also a Minister of the Scottish Government.

First Minister Sturgeon said: “I am extremely pleased to recommend the appointments of James Wolffe and Alison Di Rollo as Scotland’s senior law officers.

“James has an outstanding legal background and extensive experience at all levels, including the House of Lords, the Judicial Committee of the Privy Council, the Supreme Court of the United Kingdom, the European Court of Human Rights and the Court of Justice of the European Union.

“Alison led the work of the ground-breaking National Sexual Crimes Unit (NSCU) for three years, having previously held the role of deputy. Her outstanding leadership in this most sensitive of areas has inspired confidence in all connected to it.”

James Wolffe said: “I thank the First Minister for nominating me to the office of Lord Advocate. If I am appointed, it will be a great privilege to serve Scotland in that role.”

Alison Di Rollo said: “I am both delighted and honoured to be nominated for this role by the First Minister and I am looking forward to working with James in his new role.”

The First Minister thanked both Frank Mulholland QC and Lesley Thomson QC for their service.

She said: “In his time as Lord Advocate, Frank has made a substantial contribution to both the law and to Scottish society. The creation of the National Sexual Crimes Unit was just one example of the increased specialisation of the Crown Office that Frank Mulholland presided over.

“In her role as Solicitor General, Lesley’s work, particularly around domestic abuse, was pivotal in moving towards a system that instils confidence in victims of abuse and ensures that their abusers are held to account. I thank both Frank and Lesley for their dedicated service to the Government, to justice and to Scotland as a whole.”

Prof Black said on his blog: “It is to be hoped that one of the first priorities of the new Lord Advocate will be to consider all of the evidence now available about the Lockerbie case and the conviction of Abdelbaset Megrahi.”

ANALYSIS: Andrew Tickell 

Wolffe has what is needed to help Sturgeon in legal rough and tumble

The Lord Advocate is much more than a public prosecutor. Scotland’s chief law officer heads up the Crown Office and Procurator Fiscal service, its independent prosecutors indicting and trying those accused of crime in the public interest. But his coat buttons up tight over a range of other equally important duties. The Lord Advocate is also the Scottish Government’s principal legal advisor – the legal brain in the cabinet, who – confidentially, sympathetically – helps its ministers navigate the increasingly tricky and complex legal rules which constrain their choices. Compared to the blood and thunder of indicting wrongdoers and dishing out punishment to the guilty, his advisory role is unsexy. It catches no eyes and commands no headlines. Most of it, ye and me will never hear about. But it is absolutely essential part of modern government.

Holyrood must steer its legislation safely through the reefs and shoals of European Union law, the European Convention on Human Rights, and a sometimes knotty devolution settlement. Any major, controversial piece of legislation is always vulnerable to a legal challenge.

Land reform, tobacco vending machine bans, minimum alcohol pricing, the Named Persons provisions – all have been subject to well-organised and well-resourced challenges in our courts.

If I was the Scottish Government – so exposed to all these legal challenges to its agenda – I’d want the best legal brain on my side, counselling me, putting my side of the story if things get tough.

Nicola Sturgeon’s nominee – James Wolffe QC – has these qualities in spades. But the pick represents a clear departure for Sturgeon, who has broken with the approach adopted by her predecessor in Bute House.

This is to be welcomed.

When he first took office in 2007, Alex Salmond took the unprecedented step of leaving Jack MacConnell’s Lord Advocate in post. Elish Angiolini – a career prosecutor and solicitor – remained in office until the Holyrood election of 2011, to be replaced by her then Solicitor General and fellow career Crown Office prosecutor, Frank Mulholland. Mr Salmond was keen that his law officers should enjoy an unprecedented “independence from the political process”, establishing themselves as “independent of politics”.

In the event, Mr Salmond discovered that an independent prosecutor can be politically useful. Mr Muholland intervened regularly in political debates during his tenure. But historically, the law officers were explicitly political appointments. The garlands went to party loyalists: folk up to the job, with the requisite legal training, politically sympathetic to the government’s agenda. The Lord Advocate and the Solicitor General were partisan legal problem-solvers who could be relied on to tell legal truth to political power around the privacy of the Cabinet table, who did a bit of prosecuting on the side.

The idea that the law officers should be career prosecutors is a recent – and perhaps not altogether successful – innovation. It was Jack MacConnell who promoted Elish Angiolini to the role. The first woman to occupy the post, Strathclyde-educated Angiolini was a world away from the “Edinburgh legal fraternity” and the members of the Faculty of Advocates, who had filled the post for centuries. Her appointment prompted predictable rhubarbing from dark and dusty corners of Parliament House.

But it wasn’t all sour grapes, snobbery and personal disappointment. Some asked more substantive questions. Could career criminal lawyers effectively advise the governing on all the tough public law issues the government faces? You can’t be an expert in everything. Since 2007, the SNP has faced countless legal headaches, but its law officers have been drawn from a fairly narrow professional range. Mr Wolffe’s appointment suggests the SNP have learned from these bruising experiences before the courts, and are reckoning much more seriously with the legal rough and tumble which the Government will – inevitably – face this session.

This welcome appointment leaves Nicola Sturgeon’s government legally fortified.