Some pertinent questions from Dr Swire

[What follows is from a message sent today by Dr Jim Swire to actor, writer and director David Benson:]

Now that we know, thanks to John Ashton that the famous timer fragment was indeed a forgery there can be absolutely no excuse for pretending that this trial was fair.

For the sake of people in Scotland it is essential that an inquiry be launched into why the Crown Office failed to discover the forgery - they had the basic information before the trial - and why they failed to pass the information about the Heathrow break-in to the defence. We now know that the Scottish police were aware of the break-in in early 1989 but failed to pass it to the Crown till 1999. As often happens, it seems the police (whether or not under improper persuasion from others) decided to back their hypothesis of the bomb coming from Malta, to the exclusion of all other possibilities.

Later, in support of their hypothesis, along came the famous fragment to bolster their hypothesis. Who made it? Just how did it get into the 'evidence chain'? This must be investigated.

A side effect of the failure to alert the defence and therefore the court to the Heathrow evidence was that the defence were denied the opportunity of incorporating it into their defence of incrimination which would have pointed to the Syrian air pressure sensitive bombs, which required either arming or introduction at Heathrow, and which were obligated to a 35-45 minute flight time.

As for me, I remain enraged by the fact that Heathrow has escaped criticism for doing nothing for 16 hours, when they knew of the break-in immediately, from the early morning of the day of Lockerbie, and while our Flora boarded her flight, expecting that there would be a responsible level of security protecting it.

They might have saved all those lives, had they not decided to ignore the break-in. How sad is that?

I am also increasingly aware that the function of the prosecuting service in Scotland must be reviewed: they have the great responsibility of ensuring that evidence is shared  with the defence, and if they are not investigated for their failures over that in this case, then who can expect a fair trial with equality of arms in a Scottish court in future?

We must reform the system for everyone's sake. Justice must be seen to be done in our country in future.

More on Megrahi hospitalisation

[Most of today’s Scottish and UK newspapers have reports on Abdelbaset Megrahi’s hospitalization, as reported yesterday by Reuters news agency. The most detailed account is on the Daily Mail website.  It reads in part:]

The Lockerbie bomber has been given an emergency blood transfusion following a sudden deterioration in his health, his brother revealed last night.

Libyan Abdelbaset Ali Mohmed Al Megrahi, who is suffering from terminal cancer, was taken from his home in Tripoli to the intensive care unit of a private hospital.

The news came less than a fortnight after he celebrated his 60th birthday. (…)

Recent pictures of the bomber have shown him looking increasingly ravaged by the cancer spreading through his body.

His brother Abdulkahim told reporters: 'His health began to deteriorate quickly and we were worried about him, so took him immediately to the hospital where he is receiving a blood transfusion.'

Last night, Megrahi's condition was not known but his wife Aisha was by his side at the private clinic with most of the couple's five children.

His death will mark the end of a long fight by the relatives of his American victims to get the former intelligence agent sent to face justice in the US. (…)

Megrahi himself has protested his innocence from the beginning. On his 60th birthday, on April 1, he said prayers thanking God for the 'miracle' of his survival.

Relatives said he was slipping in and out of consciousness, kept alive by oxygen and an intravenous drip, but saw the fact he was still alive as a sign.

A family friend said: 'He is convinced there is a reason for all this and that is why he wants to continue the fight to prove his innocence.

'Brother Abdelbaset is not able to say a great deal but he makes it clear that he has been given time to prove his innocence.'

He attempted to do this with a 'deathbed memoir' claiming several miscarriages of justice.

The book was mainly based on evidence that was never heard, which was intended for an appeal the bomber abandoned. He claimed he was indirectly pressured by Mr MacAskill to drop the appeal in exchange for repatriation to Libya – a claim dismissed by the SNP as 'hearsay'.

On returning to Libya, Megrahi was treated as a hero by Colonel Gaddafi's regime and the new National Transitional Council has refused to hand him over to the US to face further charges.

A source close to Megrahi's family said: 'He's treated as a Libyan who was falsely accused and wrongly found guilty of a terrorist outrage.

'There is a great deal of support for Brother Abdelbaset no matter what his links with Gaddafi were. Brother Abdelbaset is still viewed as a national hero by many Libyans.' (…)

His family have sworn to launch a fresh appeal on the bomber's behalf after his death. [RB: As far as I am aware, this has been discussed within the family, but no promise to launch a fresh appeal has been made.] 

[Update from Agence France Presse news agency:]

Abdelbaset Ali Mohmet al-Megrahi, the Libyan convicted of the Lockerbie plane bombing, has been hospitalized in Tripoli in critical condition, a source close to his family said on Saturday.

"Abdelbaset has been in hospital since yesterday and his condition is critical," the source told AFP.

"He was admitted on Friday when his health became not so good," the source said, adding that Megrahi's relatives were at his bedside.

Megrahi in hospital in Tripoli

Abdulbasit al-Megrahi was taken from his Tripoli home to a private hospital, his brother Abdulhakim told Reuters. "His health began to deteriorate quickly and we were worried about him, so took him immediately to the hospital where he is receiving a blood transfusion," he said. (...)


Britain freed him in 2009 on compassionate grounds because he was suffering from advanced terminal prostate cancer and thought to have months to live.


His release angered many relatives of the victims, 189 of whom were American, and the Obama administration criticised the decision. A number of US politicians have pressed for his extradition to the United States, something Libya's ruling National Transitional Council said it would not do.


[From a report datelined Tripoli, just published by the Reuters news agency.]

David Wolchover responds to a challenge

Barrister David Wolchover has returned to the Lockerbie case in a further article in the Criminal Law & Justice Weekly. It is a response to criticisms on this blog by Baz of one of his earlier articles. Unfortunately, access to Mr Wolchover's latest piece requires subscription to the magazine.  However, I shall provide further details once the full text becomes available and I have returned to South Africa from Namibia.

[Posted from an internet cafē in Lűderitz.]


I am grateful to David Wolchover for sending me a copy of the text of his article Lockerbie: The True Culprits - A Postscript on Proof. It can be read here.

Captured spy chief may hold key to Lockerbie

[This is the headline over a report in today's edition of the Maltese newspaper The Sunday Times.  It reads in part:]


Former ambassador to Malta Saad Elshlmani tells Mark Micallef Libya’s transitional government has good reason to want Muammar Gaddafi’s former intelligence chief in captivity. He can unlock so many of the regime’s secrets.

Saad Elshlmani never came across as a Gaddafi man. Moderate and straight talking, he managed to build a reputation among Maltese politicians as a level-headed operator who could be truly trusted, even when he was forced to front the regime’s erratic stands. (...)

Like many young Benghazi students of his generation, he took part in the student protests of the 1970s, which provoked one of the most repressive reactions in the regime’s 42-year history. Hundreds of young protesters were arrested, many were tortured and some executed in high profile, sometimes televised hangings, which succeeded in terrorising large swathes of the Libyan population into submission for decades.

Unlike two other students in his group, who were hanged publicly in 1977, Dr Elshlmani ‘got away’ with spending a few weeks in detention in 1976 – during which he came face to face with the feared Abdallah al-Senussi, Libya’s former intelligence chief and Col Gaddafi’s right hand man, who was recently captured in Mauritania.

Libya has demanded 62-year-old al-Senussi be sent to Libya rather than the International Criminal Court, defying some international observers who argue the fledgling state already has too much on its plate to be dealing with such high profile and potentially divisive trials.

But Dr Elshlmani, now the spokesman for the transitional government’s Foreign Ministry, argues that the people making these statements may not be fully appreciating Libya’s position.

“Abdallah al-Senussi, perhaps even more than Saif, holds the key to so many of the regime’s secrets that it is vital for us to be able to speak to him. There are many stories of people who were killed or disappeared mysteriously on whom, probably, only al-Senussi can shed light at this point.”

He was Gaddafi’s conduit, Dr Eshlmani says, pointing out that the dictator would never give out orders directly but would always go through his intelligence chief. If Libya had any involvement in the Lockerbie bombing, for instance, al-Senussi would know, he points out.

Dr Elshlmani should know a thing or two about Lockerbie. In 2003 he formed part of a secret think tank which helped broker the historic deal with the US that prompted the lifting of sanctions on Libya.

The 1988 bombing of Pan Am flight 103 was perhaps the biggest hot potato in those talks, but Dr Elshlmani says he knows little more than the next person with a good grasp of the facts surrounding the tragedy.

“When I was Ambassador to Malta we had assisted the lawyers of (Abdelbasset) Al Megrahi as they prepared for the appeal. They were very confident that with new evidence they had in hand, particularly surrounding the testimony of the Maltese witness Tony Gauci, Al Megrahi’s conviction would be overturned. But I cannot say for certain if Gaddafi was involved or not. The person able to do that is al-Senussi.”

Despite the Maltese authorities’ insistence that the bomb never left from Luqa airport, the courts still decided to convict Mr Al Megrahi.

Without resorting to torture, Dr Elshlmani insists, the Libyans would be able to extract from Mr al-Senussi this information and other missing links in some of the darker happenings of the past 42 years

“It’s about asking the right questions. If I speak to al-Senussi about certain events in the 1970s, for instance, I would be able to extract information from him because he would not be able to lie to me... I would be able to take him back to the day we met and remind him what he told me,” he says. “The ICC would simply not be able to do this.”


[For the next week I shall be travelling around southern Namibia and will be able to trawl for Lockerbie-related material and post to this blog only intermittently. Internet cafes and wifi hotspots are thin upon the ground in the Nama Karoo.]

Why Lockerbie continues to cause controversy

"For anyone who's ever wondered why Lockerbie continues to cause controversy, this is an excellent primer" says @TremendaoNeil on Twitter, referring to Dr M G Kerr's superb Scottish Review article An overview of the Lockerbie case. This article provides the irrefutable answer to those who -- like too many lazy Scottish politicians -- are wont to say "There may have been a few technical flaws in the Megrahi trial and conviction, but what does that matter, since he was clearly guilty anyway."  There is now no excuse for such ignorant claptrap.

Reaction to Colin Boyd QC's forthcoming elevation

[The following are excerpts from a report by Lucy Adams in today’s edition of The Herald:]

Meanwhile, the news Lord Boyd is due to become a judge has provoked criticism.

He led the prosecution of the man convicted of the Lockerbie bombing, and was criticised by the Scottish Criminal Cases Review Commission for failing to disclose information to Abdelbaset Ali Mohmed al Megrahi's defence. He rejected the claims.

When he resigned as Lord Advocate in 2006 there was speculation his decision was connected to the Shirley McKie fingerprint inquiry and Lockerbie case criticisms. He denied that and said it was just time to move on.

Ms McKie's father Iain said the news "took my breath away". He said: "That the Judicial Appointments Board should recommend to the First Minister that Lord Colin Boyd be appointed as a judge to the highest court in the land set new standards for being out of touch."

Tam Dalyell, the former MP and father of the house, said: "The fact he may well become a judge should not inoculate Lord Boyd from the obligation to answer questions on Lockerbie over the period that he headed the Crown Office.

"The Crown Office, and I would have thought Lord Boyd in his position in the Crown Office, have an obligation to address powerful criticisms of non-disclosure."

Megrahi prosecutor to become Scottish judge

[This is the headline over a report by Lucy Adams in today’s edition of The Herald.  It reads in part:]

Four high-profile QCs, including the former Lord Advocate Colin Boyd and Tommy Sheridan's former defence counsel, Maggie Scott, are about to become high court judges.

Mr Boyd, now Lord Boyd, who led the prosecution of the man convicted of the Lockerbie bombing, was recently criticised by the Scottish Criminal Cases Review Commission for failing to disclose crucial information to Abdelbaset Ali Mohmed al Megrahi's defence. He rejected the claim. [RB: An account of Colin Boyd QC's conduct at one stage of the Lockerbie trial can be read here.]

Ms Scott, who was sacked by Mr Sheridan during his perjury trial in 2010, and led Megrahi's recent appeal case and the defence in many high-profile cases, including Ice Cream War murderer Thomas "TC" Campbell and more recently Nat Fraser, as well as Luke Mitchell, who was convicted of murdering teenager Jodi Jones in January 2005.

The Herald understands Michael Jones and David Burns have also been recommended for the appointments.

A source close to the process said: "Colin Boyd and Maggie Scott are two of the people the Judicial Appointments Board has recommended to the First Minister. It would be highly unusual for ministers to reject such a recommendation. Their appointments are expected to be confirmed shortly."

Lord Boyd resigned as Lord Advocate in 2006. His decision was seen as unusual and triggered speculation he was concerned about the inquiry into the Shirley McKie case, in which a police officer was wrongly accused of leaving a fingerprint at a murder scene and lying about it.

Another potential reason raised was the imminent decision on whether the Lockerbie case would be referred back for a fresh appeal.

Lord Boyd denied he was leaving because of the McKie fingerprint investigation or any other case and said it was simply "time to move on".

Jim Swire, whose daughter died in the Lockerbie bombing, said: "I understand the limited personnel and resources of the Scottish criminal justice system but I am surprised that Colin Boyd would have been put forward as a potential judge.

"In support of his colleagues on the prosecution team, it seemed to me that Boyd made a statement to the court [at Zeist] which was later shown by the revelations in the CIA cables to be untrue. It was over a matter of extreme importance because it concerned the credibility of the prosecution's star witness." (…)

Maggie Scott has described herself as "relatively rebellious". Following her sacking by Sheridan in 2010, the former MSP represented himself and was convicted of perjury in his defamation action against the News of the World in 2006.

Mr Jones, QC, acted for the News of the World in the Sheridan case and the owners of the Rosepark care home in South Lanarkshire after 14 residents died in a fire. Mr Burns recently acted for Craig Roy, who was convicted of murdering Jack Frew. [RB: David Burns QC was second senior counsel for Abdelbaset Megrahi at the Zeist trial and at the first appeal.]

Maggie Scott, QC, said last night that she could not comment. Lord Boyd could not be contacted.

[Two other members of the prosecution team, Alastair Campbell QC and Alan Turnbull QC have already become High Court judges. The principal procurator fiscal at the trial, Norman McFadyen, has become a sheriff.  A commentary by Lucy Adams in the same newspaper headlined Judges are no strangers to controversy focuses particularly on Colin Boyd’s controversial role in the Lockerbie trial.]

Did justice prevail in the Lockerbie trial?

[This is the headline over an editorial in today's edition of the Maltese newspaper The Times.  It reads as follows:]

 

Two hundred and seventy people died when Pan Am flight 103 exploded over Lockerbie in Scotland on December 21, 1988. One man, Abdelbaset al-Megrahi, was convicted of the crime but the story is not over yet because, according to a report by a Scottish review commission, there may have been a miscarriage of justice.

Mr al-Megrahi had unsuccessfully appealed and then dropped a second appeal shortly before the highly controversial decision by Scotland to release him on compassionate grounds in August 2009 as he had been expected to die from cancer within three months. He is still alive though bedridden.

Investigators had alleged that the suitcase containing the bomb that destroyed the aircraft in the explosion had started its journey from Malta, a claim that the Maltese government had persistently denied. According to the investigators, the case had also contained fragments of clothing made by a manufacturer in Malta and sold by a shop in Sliema.

A Scottish newspaper, the Sunday Herald, has now published online a report into the al-Megrahi case, drawn up by the Scottish Criminal Cases Review Commission and which had been kept secret for five years. In the commission’s view, seven vital pieces of evidence had not been disclosed by the Crown Office. It argues that, had such information been shared with the defence team, the outcome of the trial could have been different.

At stake in the review commission’s report is the credibility of the evidence given by a Maltese shopkeeper and which was a determining factor in the case for the prosecution. Confirming media reports that the shopkeeper and his brother had been compensated by the US State Department for their evidence, the commission argued, correctly, that the information should have been disclosed. It held the information could have been used to question the shopkeeper’s credibility. Had this been done, it could have put the prosecution’s case in serious difficulty.

Jim Swire, who lost a daughter in the terrorist act, believes there is even more compelling evidence relating to a “fabricated” metal fragment initially used to trace the bomb to Libya. He holds that the fragment was made and planted deliberately as evidence to mislead the Scottish courts. Following the publication of the review commission’s report, he now feels the Maltese government ought to petition the Crown Office in Edinburgh to reopen the investigation.

Dr Swire has for long believed that Mr al-Megrahi is innocent of the crime.

There are bound to be differences over whether there is need for Malta to clear its name with some arguing, for example, that there had never been any conclusive evidence that the bomb had left from here and that the country had never been accused of aiding terrorists. This may very well be true but the perception created by the investigators’ conclusion that the case containing the bomb had started its journey from Malta is hard to remove without conclusive evidence to the contrary.

It would, therefore, be only fair for Malta to have the perception removed altogether if this is at all possible after so many years since the explosion.

Scottish Justice Secretary Kenny MacAskill has said that issues raised in the review commission’s report would have been properly considered by the Appeal Court had Mr al-Megrahi not withdrawn his appeal. So, whose interest is it now to ensure that there has not been a miscarriage of justice? And is it not crucial for Malta to clear its name altogether?

Secrets of a memo: the Crown and the CIA

[This is the headline over an article by John Ashton published in today’s edition of the Scottish Review and also here on the Megrahi: You are my Jury website.  It reads in part:]

Welcoming the release of the Scottish Criminal Cases Review Commission's report on the conviction of Abdelbaset al-Megrahi on 25 March, Alex Salmond managed to add to the roll call of excuses for not ordering a public inquiry into the case. 

The report, he said, 'in many ways is far more comprehensive than any inquiry could ever hope to be'. In fact, it's not: the SCCRC's job was to establish whether Megrahi may have been wrongly convicted, not to examine why the case went so badly wrong, although it undoubtedly shed some light on that matter. 

  

If a single document illustrates why we still need an inquiry, it is a confidential memo dated 2 June 2000 by the lead procurator fiscal on the case, Norman McFadyen. Published here for the first time, it reports on a meeting that McFadyen and advocate depute Alan Turnbull QC had had the previous day at the US embassy in The Hague. Large sections of it remain redacted. 

The two prosecutors were there to inspect CIA cables relating to one of the Crown's star witnesses, an ex-colleague of Megrahi's called Majid Giaka, who was a member of the Libyan external intelligence service, the ESO. Giaka, it transpired, was also a CIA informant. Crucially, he claimed that, shortly before the bombing, Megrahi had arrived in Malta with a brown Samsonite suitcase and that his co-accused Lamin Fhimah had helped him carry it through airport customs. If true, this was highly significant, because the Lockerbie bomb was also contained within a brown Samsonite and, according to the Crown, began its journey in Malta. 

Twenty-five heavily redacted cables had been disclosed to the defence. The purpose of the meeting, according to the memo, was to view almost entirely unredacted versions in order to determine 'whether there was any material which required to be disclosed to the defence'. Page two states that, at the CIA's insistence, the two men had to sign a confidentiality agreement, the terms of which McFadyen described as follows: 'If we found material which we wished to use in evidence we would require to raise that issue with the CIA and not make any use of the material without their agreement'. In effect, then, the Crown had secretly ceded to the CIA the right to determine what material might be used in court. 
          

But it's what followed a few paragraphs later that's key. McFadyen reported that, having inspected the cables: 

We were able to satisfy ourselves that there was nothing omitted which could assist the defence in itself. There were some references to matters which in isolation might be thought to assist the defence – eg details of payments or of efforts by Majid to secure sham surgery – but since evidence was being provided as to the total of payments made and of the request for sham surgery, the particular material did not appear to be disclosable. We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence.

McFadyen was correct in stating that evidence had been disclosed of the total payments to Giaka and a request for sham surgery in order to enable him to resign from the ESO. The payments were detailed in two separate CIA documents (not cables) while his desire for sham surgery request was referred to in one of the disclosed cables.

When, almost three months later, the defence counsel learned of the Hague embassy meeting, they urged the court to ask the Crown to obtain the complete cables from the CIA. In response, the lord advocate, Colin Boyd QC, assured the court that McFadyen's and Turnbull's review had established that 'there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special [defence of incrimination]'. He added: 'there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid [Giaka] on these matters'.

The court nevertheless urged the Crown to seek fuller versions of the cables from the CIA. Three days later the Crown handed the defence copies with far fewer redactions. What, then, was contained in the previously concealed sections, which, in McFadyen's view, was 'not relevant to the case or helpful to the defence'? Here's what.

There were repeated references not only to Giaka's desire for sham surgery, but also his repeated and successful pleas to the CIA to pay for it. One of the cables described him as 'something of a hypochondriac', while another noted his claim to be a distant relative of Libya's former leader King Idris. A further one revealed that he wanted the CIA to set him up in a car rental business in Malta and that he had saved $30,000 towards the venture. His handlers believed that much of the money had been acquired from illegal commissions and perhaps through low-level smuggling. 

Crucially, there were references to other meetings with the CIA, for which no cables had disclosed. Eventually the CIA coughed up 36 more, about which McFadyen and Turnbull were seemingly unaware.

The most telling fact concealed by the redactions was that the CIA had grown increasingly dissatisfied with Giaka. One noted that his information about the ESO's structure and administration 'may be somewhat skewed by his prolonged absence and lack of seniority'. Another revealed that he would be told: 'that he will only continue his $1,000 per month salary payment through the remainder of 1989. If [he] is not able to demonstrate sustained and defined access to information of intelligence value by January 1990, [the CIA] will cease all salary and financial support until such access can be proven again'. 

A later section of the same cable noted: 'it is clear that [Giaka] will never be the penetration of the ESO that we had anticipated… [He] has never been a true staff member of the ESO and as he stated at this meeting, he was coopted with working with the ESO and he now wants nothing to do with them or their activities… We will want to ensure that [he] understands what is expected of him and what he can expect from us in return. [CIA] officer will therefore advise [him] at 4 Sept meeting that he is on "trial" status until 1 January 1990'.

Having analysed the unredacted sections, Richard Keen QC, respresenting Megrahi's co-accused, Lamin Fhimah, told the court it was 'abundantly clear' that much of the newly uncovered information was highly relevant to the defence, adding, 'I frankly find it inconceivable that it could have been thought otherwise... Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond'. 

In order words, the Crown had been caught out misleading the court. I do not suggest that Boyd did so deliberately, neither that McFadyen and Turnbull deliberately concealed evidence that they knew would be helpful to the defence. Motive is not the issue: what really matters is the quality of the Crown's judgement. 

Armed with the new information and the 36 additional cables, Keen and Megrahi's counsel, Bill Taylor QC, were able to demolish Giaka's credibility and with it the case against Fhimah, who was acquitted. Had the court taken Boyd at his word and the redactions not been lifted, Giaka might have left the witness stand with his credibility intact and Fhimah may well have been convicted along with Megrahi. 

The big remaining question raised by the McFadyen memo is: was it an isolated failure of judgement or the tip of the iceberg? The SCCRC found numerous items of significant evidence which the Crown had failed to disclose to Megrahi's lawyers. Did the prosecutors also satisfy themselves in each instance 'that there was nothing omitted which could assist the defence'? Only a full public inquiry can adequately answer such questions. It is high time that Salmond's government ordered one.

[My own 2007 account in The Scotsman of the shameful CIA cables episode can be read here. It contains the following paragraph:]

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety. Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

[Had it been defence lawyers who had been caught misleading the court in this fashion, censure and severe professional consequences would inevitably have followed.]