Saturday, 18 October 2008
High Court decision on Lockerbie case is to be welcomed
This is the headline over a letter in today's issue of The Herald from Dr Jim Swire. It can be read here.
Thursday, 16 October 2008
Monkey business?
Your vigilant reporter noticed at yesterday’s session of the High Court in Edinburgh that Dr Jim Swire was wearing only one hearing-aid and not his normal two. Perhaps the hearing in one ear had dramatically improved, I thought. Regrettably not. What happened was that while the intrepid Dr Swire was walking recently along a jungle trail in Sarawak, one of his hearing-aids mysteriously went missing. Was it purloined by a proboscis monkey, appropriated by an orang-utan or simply lassoed by a liana? Yet another Lockerbie-related mystery.
Wednesday, 15 October 2008
Lockerbie bombing families step up calls for full enquiry
This is the headline over a story posted this afternoon on the website of The Scotsman. It reads in part:
'Speaking after today's hearing, Dr [Jim] Swire said: "[It is proposed to draft] a letter [calling for a full enquiry] which we will be asking various notable people to sign on behalf of the relatives. It defines why we are still impatient with what has been revealed to us so far.
'"We have always called for a comprehensive inquiry and one of the great areas of irritation is the question of why the disaster was not prevented and why our loved ones were allowed to be murdered."
'He added: "In addition to that there are questions surrounding the conduct of the case, the conduct of the investigation, the role of the Scottish authorities in the investigation and the role of both the British and US authorities in the drawing up of evidence."
'Dr Swire said in the years since the tragedy the families had met many people who had shown a "heartening interest" in the case.
'"We hope many of them will be prepared to sign a letter which basically will call for a thorough inquiry into all the questions that are still outstanding surrounding this terrible case.
'"We anticipate that letter would then be published, on or around the 20th anniversary."'
The full text of the article can be read here.
'Speaking after today's hearing, Dr [Jim] Swire said: "[It is proposed to draft] a letter [calling for a full enquiry] which we will be asking various notable people to sign on behalf of the relatives. It defines why we are still impatient with what has been revealed to us so far.
'"We have always called for a comprehensive inquiry and one of the great areas of irritation is the question of why the disaster was not prevented and why our loved ones were allowed to be murdered."
'He added: "In addition to that there are questions surrounding the conduct of the case, the conduct of the investigation, the role of the Scottish authorities in the investigation and the role of both the British and US authorities in the drawing up of evidence."
'Dr Swire said in the years since the tragedy the families had met many people who had shown a "heartening interest" in the case.
'"We hope many of them will be prepared to sign a letter which basically will call for a thorough inquiry into all the questions that are still outstanding surrounding this terrible case.
'"We anticipate that letter would then be published, on or around the 20th anniversary."'
The full text of the article can be read here.
Did the SCCRC give 5 or 6 reasons?
The High Court in today's Opinion refers to the Scottish Criminal Cases Review Commission's having given five reasons for deciding that Abdelbaset Megrahi's conviction may have been a miscarriage of justice. The SCCRC itself said that there were six reasons (para 2.8 of the SCCRC press release) though it itemised only four. What is the explanation for the discrepancy? I believe it to be the following.
The SCCRC counted (a) the failure of the Crown before the Zeist trial to hand over to the defence the mysterious document(s) in respect of which public interest immunity has now been claimed by the UK Foreign Secretary and (b) the evidence contained within that document as two separate reasons. It looks as if the High Court is lumping these two aspects together and counting them as amounting to only one single reason.
The SCCRC counted (a) the failure of the Crown before the Zeist trial to hand over to the defence the mysterious document(s) in respect of which public interest immunity has now been claimed by the UK Foreign Secretary and (b) the evidence contained within that document as two separate reasons. It looks as if the High Court is lumping these two aspects together and counting them as amounting to only one single reason.
Comprehensive victory for appellant
The High Court has totally rejected the Crown's contention that, as a matter of law, the appellant was entitled to argue only those grounds of appeal that formed the basis of the Scottish Criminal Cases Review Commission's decision to refer Abdelbaset Megrahi's case back to the court. It was always accepted by the appellant's legal team that the court had a discretion to reject any individual proposed ground of appeal (eg on the basis that it appeared on the face of it to be unarguable). But this was not good enough for the Crown, who insisted that it was a matter of law that the only grounds that the appellant was entitled to advance and entitled to have heard were those accepted by the SCCRC. It was in order to achieve such a ruling (which would have been contrary to decisions of the court in earlier cases) that a bench of five judges had to be convened. The Crown's argument has been unanimously (and, with respect, correctly) rejected by all five judges.
The Herald reports Tony Kelly, Mr Megrahi's solicitor, as saying:
"It is a complete victory for the appellant's position before the court and a complete rejection of the Crown's argument.
"The Crown employed lots of resources to try to restrict the court and they have been stopped in their tracks.
"It is an important victory for Mr Al Megrahi."
The following is an official summary of the court's Opinion. The full 83-paragraph Opinion can be read here.
SUMMARY
The Scottish Criminal Cases Review Commission has referred to this court the case of Abdelbaset Ali Mohamed Al Megrahi. The reference document runs to 790 pages. In it detailed consideration is given to a wide range of representations made on behalf of the applicant (the present appellant), as well as to the Commission's own investigations. Some of these representations found favour with the Commission; others did not. In making the reference the Commission identified five reasons which led it to believe that a miscarriage of justice may have occurred. These reasons are set out in Chapters 21 to 25 inclusive of the reference document.
The appellant has, within the time limit specified by the Act of Adjournal, lodged grounds of appeal. These run to 317 pages. They include (sometimes reformulated) matters considered by the Commission but not included in its reasons for making the reference; they also include matters not raised with or discussed by the Commission.
The Crown contends that the appellant can not, as of right, require the court to entertain the full grounds of appeal lodged by him. While it is accepted that the court may, in the exercise of its discretion, entertain any of the grounds tabled, it is contended that the appellant is not entitled to have entertained grounds going beyond the reasons stated by the Commission in their reference. The debate which we heard was concerned with discussion of that contention.
The court has heard wide-ranging submissions from the Crown and from the appellant's counsel. The issue is one of statutory construction - in particular, the meaning and effect of section 194B(1) of the Criminal Procedure (Scotland) Act 1995, as amended by the Crime and Punishment (Scotland) Act 1997. The arguments advanced by the parties and the court's discussion of them are fully set out in the Opinion of the Court which is now available. The court's conclusion is that, for the reasons given, it rejects the statutory construction urged by the Advocate depute and holds that the appellant is entitled to have his stated grounds of appeal decided by the court on their respective merits. The mechanisms which the court will adopt for the purpose of making such an adjudication will require to be considered in due course. Whether it is desirable, having regard to among other things the use of judicial resources, that a reference appellant should have unrestricted scope in what he lays before the court for adjudication is a matter for Parliament; but this court must apply the statute as presently framed.
The court will put the case out for a procedural hearing at which it will consider parties' proposals for the management of this complex appeal.
The Herald reports Tony Kelly, Mr Megrahi's solicitor, as saying:
"It is a complete victory for the appellant's position before the court and a complete rejection of the Crown's argument.
"The Crown employed lots of resources to try to restrict the court and they have been stopped in their tracks.
"It is an important victory for Mr Al Megrahi."
The following is an official summary of the court's Opinion. The full 83-paragraph Opinion can be read here.
SUMMARY
The Scottish Criminal Cases Review Commission has referred to this court the case of Abdelbaset Ali Mohamed Al Megrahi. The reference document runs to 790 pages. In it detailed consideration is given to a wide range of representations made on behalf of the applicant (the present appellant), as well as to the Commission's own investigations. Some of these representations found favour with the Commission; others did not. In making the reference the Commission identified five reasons which led it to believe that a miscarriage of justice may have occurred. These reasons are set out in Chapters 21 to 25 inclusive of the reference document.
The appellant has, within the time limit specified by the Act of Adjournal, lodged grounds of appeal. These run to 317 pages. They include (sometimes reformulated) matters considered by the Commission but not included in its reasons for making the reference; they also include matters not raised with or discussed by the Commission.
The Crown contends that the appellant can not, as of right, require the court to entertain the full grounds of appeal lodged by him. While it is accepted that the court may, in the exercise of its discretion, entertain any of the grounds tabled, it is contended that the appellant is not entitled to have entertained grounds going beyond the reasons stated by the Commission in their reference. The debate which we heard was concerned with discussion of that contention.
The court has heard wide-ranging submissions from the Crown and from the appellant's counsel. The issue is one of statutory construction - in particular, the meaning and effect of section 194B(1) of the Criminal Procedure (Scotland) Act 1995, as amended by the Crime and Punishment (Scotland) Act 1997. The arguments advanced by the parties and the court's discussion of them are fully set out in the Opinion of the Court which is now available. The court's conclusion is that, for the reasons given, it rejects the statutory construction urged by the Advocate depute and holds that the appellant is entitled to have his stated grounds of appeal decided by the court on their respective merits. The mechanisms which the court will adopt for the purpose of making such an adjudication will require to be considered in due course. Whether it is desirable, having regard to among other things the use of judicial resources, that a reference appellant should have unrestricted scope in what he lays before the court for adjudication is a matter for Parliament; but this court must apply the statute as presently framed.
The court will put the case out for a procedural hearing at which it will consider parties' proposals for the management of this complex appeal.
The "scope of the appeal" decision
It has been announced that the High Court's decision on the scope of the appeal will be issued at 12 noon today. The question whether the appeal should be confined to the six issues on which the Scottish Criminal Cases Review Commission held that Abdelbaset Megrahi's conviction might have constituted a miscarriage of justice was argued before five judges over four days from 17 to 20 June 2008.
Monday, 13 October 2008
Law Officers to join Faculty of Advocates
Elish Angiolini QC , the Lord Advocate and Frank Mulholland QC, the Solicitor General for Scotland, are to become members of the Faculty of Advocates.
In a statement issued today the Faculty said: “The Dean of the Faculty of Advocates Richard Keen QC, is pleased to announce the prospective admission to membership of the Faculty of Elish Angiolini QC, the Lord Advocate and Frank Mulholland QC, the Solicitor General.
“Mrs Angiolini and Mr Mulholland have played a leading role in the legal profession for a number of years and it is entirely appropriate that they should join the Faculty with its long tradition of service to the justice system and the people of Scotland.”
They will be formally admitted to membership of the Faculty at a calling ceremony on November 7.
A spokesperson for the Crown Office and Procurator Fiscal Service said:
"Mrs Angiolini and Mr Mulholland are honoured to have been invited to apply to join the Faculty of Advocates, which is highly respected for its central role in delivering independent legal services in Scotland."
[From the website of Scottish lawyers' magazine, The Firm. The Dean of Faculty, Richard Keen QC, was senior counsel for Lamin Fhimah, the acquitted co-accused in the Lockerbie trial at Camp Zeist. There is an interesting article on Mrs Angiolini's forthcoming membership of the Faculty of Advocates, and the possible reasons for it, on The Scotsman website.]
In a statement issued today the Faculty said: “The Dean of the Faculty of Advocates Richard Keen QC, is pleased to announce the prospective admission to membership of the Faculty of Elish Angiolini QC, the Lord Advocate and Frank Mulholland QC, the Solicitor General.
“Mrs Angiolini and Mr Mulholland have played a leading role in the legal profession for a number of years and it is entirely appropriate that they should join the Faculty with its long tradition of service to the justice system and the people of Scotland.”
They will be formally admitted to membership of the Faculty at a calling ceremony on November 7.
A spokesperson for the Crown Office and Procurator Fiscal Service said:
"Mrs Angiolini and Mr Mulholland are honoured to have been invited to apply to join the Faculty of Advocates, which is highly respected for its central role in delivering independent legal services in Scotland."
[From the website of Scottish lawyers' magazine, The Firm. The Dean of Faculty, Richard Keen QC, was senior counsel for Lamin Fhimah, the acquitted co-accused in the Lockerbie trial at Camp Zeist. There is an interesting article on Mrs Angiolini's forthcoming membership of the Faculty of Advocates, and the possible reasons for it, on The Scotsman website.]
Tripoli Post on payment into compensation fund
The website of The Tripoli Post (Libya's English-language newspaper) has an article on the payment recently made into the compensation fund set up after negotiations in August between the United States and Libya. The article reads in part:
'Libya has started making payments into a $1.8 billion fund to compensate the families of Libyans who were killed by American air strikes on Libya in 1986 and American victims of alleged terror attacks in the 1980s.
'The US State Department said Thursday that the US "received a substantial amount of money" without saying how much. The amount was deposited on Wednesday night.
'The Libyan acted to fulfill a compensation agreement that was signed earlier this year.
'The agreement calls for the creation of a $1.8 billion fund: $1.5 billion for those victims.
'Libya has sought donations from private businesses to help cover its share of the fund. (...)
'Libyan officials said in the past that by paying such high compensations they were buying peace. They have also insisted that Libya had nothing to do with the bombing of the 1988 PanAm airplane over Lockerbie, England [sic].
'Legal experts around the world including in the US and Britain said that the convicted Libyan in the Lockerbie bombing, Abdulbaset El-Megrahi, was innocent and that the Scottish court that sentenced him to life in prison did commit a miscarriage of justice.'
The full article can be read here.
'Libya has started making payments into a $1.8 billion fund to compensate the families of Libyans who were killed by American air strikes on Libya in 1986 and American victims of alleged terror attacks in the 1980s.
'The US State Department said Thursday that the US "received a substantial amount of money" without saying how much. The amount was deposited on Wednesday night.
'The Libyan acted to fulfill a compensation agreement that was signed earlier this year.
'The agreement calls for the creation of a $1.8 billion fund: $1.5 billion for those victims.
'Libya has sought donations from private businesses to help cover its share of the fund. (...)
'Libyan officials said in the past that by paying such high compensations they were buying peace. They have also insisted that Libya had nothing to do with the bombing of the 1988 PanAm airplane over Lockerbie, England [sic].
'Legal experts around the world including in the US and Britain said that the convicted Libyan in the Lockerbie bombing, Abdulbaset El-Megrahi, was innocent and that the Scottish court that sentenced him to life in prison did commit a miscarriage of justice.'
The full article can be read here.
Saturday, 11 October 2008
Eighth (public) procedural hearing on 15 October
A further procedural hearing in the ongoing Lockerbie appeal will take place in the High Court of Justiciary on Wednesday, 15 October 2008. Perhaps the opportunity will be taken for the court to announce its decision on the issue of the scope of the appeal (ie whether it must be limited to the six grounds on which the Scottish Criminal Cases Review Commission held that there might have been a miscarriage of justice). This matter was argued on 17 to 20 June 2008 and the court’s decision reserved.
The first in the seemingly endless series of procedural hearings took place on 11 October 2007, one year ago. I repeat what I wrote on this blog on 17 July 2008:
More than a year [now more than fifteen months] has passed since the Scottish Criminal Cases Review Commission referred Abdelbaset Megrahi’s case back to the Criminal Appeal Court on the basis that his conviction might have amounted to a miscarriage of justice. More than nine months [now more than twelve months] have passed since the first procedural hearing in the new appeal was held. More than six months [now more than nine months] have passed since the appellant’s full written grounds of appeal were lodged with the court.
Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?
The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze isn’t in the book, have been asking the court to rewrite the book to insert it). The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done nothing meaningful to curb it. This must end. The delay is becoming scandalous. The reputation of Scotland’s criminal justice system is being further tarnished in the eyes of the world.
And all the while a man languishes in Greenock Prison. I have never made any bones about my view that the conviction of Abdelbaset Megrahi on the evidence led at the Scottish Court in the Netherlands is the worst Scottish miscarriage of justice in the past one hundred years, indeed since the conviction of Oscar Slater. But even those who do not share my views, or who are neutral on the issue, would surely accept that the delay in bringing the new appeal to a hearing on the merits is beginning to look cruel and unconscionable.
It is up to the judges to start cracking the whip. The words of Francis Bacon in his essay “Of Judicature” are perhaps worth recalling:
“A judge ought to prepare his way to a just sentence, as God useth to prepare his way, by raising valleys and taking down hills: so when there appeareth on either side an high hand, … cunning advantages taken, combination, power, … then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.”
The first in the seemingly endless series of procedural hearings took place on 11 October 2007, one year ago. I repeat what I wrote on this blog on 17 July 2008:
More than a year [now more than fifteen months] has passed since the Scottish Criminal Cases Review Commission referred Abdelbaset Megrahi’s case back to the Criminal Appeal Court on the basis that his conviction might have amounted to a miscarriage of justice. More than nine months [now more than twelve months] have passed since the first procedural hearing in the new appeal was held. More than six months [now more than nine months] have passed since the appellant’s full written grounds of appeal were lodged with the court.
Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?
The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze isn’t in the book, have been asking the court to rewrite the book to insert it). The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done nothing meaningful to curb it. This must end. The delay is becoming scandalous. The reputation of Scotland’s criminal justice system is being further tarnished in the eyes of the world.
And all the while a man languishes in Greenock Prison. I have never made any bones about my view that the conviction of Abdelbaset Megrahi on the evidence led at the Scottish Court in the Netherlands is the worst Scottish miscarriage of justice in the past one hundred years, indeed since the conviction of Oscar Slater. But even those who do not share my views, or who are neutral on the issue, would surely accept that the delay in bringing the new appeal to a hearing on the merits is beginning to look cruel and unconscionable.
It is up to the judges to start cracking the whip. The words of Francis Bacon in his essay “Of Judicature” are perhaps worth recalling:
“A judge ought to prepare his way to a just sentence, as God useth to prepare his way, by raising valleys and taking down hills: so when there appeareth on either side an high hand, … cunning advantages taken, combination, power, … then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.”
Friday, 10 October 2008
US-Libyan relations after the funds transfer
The website of the US Department of State contains a transcript of a question and answer session on US-Libya relations held yesterday by Assistant Secretary of State for Near Eastern Affairs, C David Welch. It can be read here.
One of the questions Mr Welch was asked was whether non-US Lockerbie relatives would receive payments out of the fund. Here is what he said:
'In the case of the court cases in the United States, the Administration is only authorized, constitutionally and under our law, to address cases of Americans or American nationals. However, the Pan Am settlement is part of this in the sense that it’s an existing settlement which included, you’re correct, non-Americans, for example, people in Scotland on the ground. And they would be embraced by the settlement amounts contemplated on the, if you will, American side of the ledger.'
One of the questions Mr Welch was asked was whether non-US Lockerbie relatives would receive payments out of the fund. Here is what he said:
'In the case of the court cases in the United States, the Administration is only authorized, constitutionally and under our law, to address cases of Americans or American nationals. However, the Pan Am settlement is part of this in the sense that it’s an existing settlement which included, you’re correct, non-Americans, for example, people in Scotland on the ground. And they would be embraced by the settlement amounts contemplated on the, if you will, American side of the ledger.'
Thursday, 9 October 2008
US says Libya puts "substantial" money in fund
The Reuters Africa website reports that a US official has stated that Libya has deposited a substantial amount of money (though not yet the full agreed amount) in the compensation fund for, amongst others, the relatives of those killed in the Lockerbie disaster. The first few paragraphs of the report read:
'Libya has deposited a "substantial" sum of money into a compensation fund for victims of terrorism but payments cannot be made until Tripoli gives the remaining agreed amount, a senior U.S. official said on Thursday.
'"We have received a substantial amount of money in a U.S. account towards compensating the U.S. victims and families with terrorism-related claims against Libya," said the official, who declined to be named.
'He refused to say how much money the Libyans had handed over but the fund is estimated eventually to total about $1.8 billion. It was agreed on in August by the United States and Libya to settle terrorism cases on both sides from the 1980s.
'"We believe that direct deposit of these funds into a U.S. account is evidence of Libya's commitment to fully implementing the claims settlement agreement," the official told reporters.'
The full article can be read here.
'Libya has deposited a "substantial" sum of money into a compensation fund for victims of terrorism but payments cannot be made until Tripoli gives the remaining agreed amount, a senior U.S. official said on Thursday.
'"We have received a substantial amount of money in a U.S. account towards compensating the U.S. victims and families with terrorism-related claims against Libya," said the official, who declined to be named.
'He refused to say how much money the Libyans had handed over but the fund is estimated eventually to total about $1.8 billion. It was agreed on in August by the United States and Libya to settle terrorism cases on both sides from the 1980s.
'"We believe that direct deposit of these funds into a U.S. account is evidence of Libya's commitment to fully implementing the claims settlement agreement," the official told reporters.'
The full article can be read here.
Wednesday, 8 October 2008
Democrats battle Bush over Libyan relations
This is the headline over an article on The Hill, a news website devoted to matters relating to the US Congress. The first few paragraphs read:
'Senate Democrats and the Bush administration continue to butt heads over Libya despite a historic, multibillion-dollar deal that settled claims made against the government of Moammar Gadhafi by terrorist victims’ families.
'The problem, according to lobbyists for the families, is that Libya has yet to pay into a $1.8 billion fund that was to be shared by the victims’ families. Libya agreed to set up the fund in exchange for victims’ families dropping lawsuits against the Libyan government.
'Representatives of the families argue the White House should not be cozying up to Libya when that country is not living up to its side of the bargain. They are turning to their allies in Congress to turn up the pressure on the administration.
'The families and members of Congress are irritated with Secretary of State Condoleezza Rice’s September trip to Libya, the first visit in a half-century by a sitting secretary of State. They’re also unhappy that an assistant secretary at the Commerce Department went to Tripoli last week to help set up a commercial office in the country.'
The full text can be read here.
'Senate Democrats and the Bush administration continue to butt heads over Libya despite a historic, multibillion-dollar deal that settled claims made against the government of Moammar Gadhafi by terrorist victims’ families.
'The problem, according to lobbyists for the families, is that Libya has yet to pay into a $1.8 billion fund that was to be shared by the victims’ families. Libya agreed to set up the fund in exchange for victims’ families dropping lawsuits against the Libyan government.
'Representatives of the families argue the White House should not be cozying up to Libya when that country is not living up to its side of the bargain. They are turning to their allies in Congress to turn up the pressure on the administration.
'The families and members of Congress are irritated with Secretary of State Condoleezza Rice’s September trip to Libya, the first visit in a half-century by a sitting secretary of State. They’re also unhappy that an assistant secretary at the Commerce Department went to Tripoli last week to help set up a commercial office in the country.'
The full text can be read here.
Gaddafi ‘not excited’ about coming UK visit
From a letter in today's issue of The Herald from a press officer at the Libyan People's Bureau (embassy) in London:
"It is worth mentioning that the Leader is not overly excited about visiting the United Kingdom, either for the coming Oil Summit, or otherwise, and that the Lockerbie case file is closed for ever, according to the relevant United [Nations] Security Council resolutions. The remaining aspect is the legal position regarding the Libyan national, Mr Abdelbaset Ali Mohmed al Megrahi, who is still awaiting a decision regarding his second appeal, which was granted by the Scottish Criminal Cases Review Commission (SCCRC)."
"It is worth mentioning that the Leader is not overly excited about visiting the United Kingdom, either for the coming Oil Summit, or otherwise, and that the Lockerbie case file is closed for ever, according to the relevant United [Nations] Security Council resolutions. The remaining aspect is the legal position regarding the Libyan national, Mr Abdelbaset Ali Mohmed al Megrahi, who is still awaiting a decision regarding his second appeal, which was granted by the Scottish Criminal Cases Review Commission (SCCRC)."
Tuesday, 7 October 2008
Scientific shenanigans
[What follows is an extract from The people who moved the world, a forthcoming book by Jim Swire. It appears here by kind permission of Dr Swire and Peter Biddulph.]
Dr Thomas Hayes was formerly head of the forensics explosives laboratory at the British Royal Armaments Research and Defence Establishment (RARDE), and was a key witness in the prosecution case. I would find his evidence at times breathtaking and worrying.
He was aged fifty three, having retired from his RARDE post ten years earlier. As a bachelor of science honours in chemistry, a master of science in the faculty of forensic science, a doctor of philosophy in the faculty of forensic science, a chartered chemist, and a member of the Royal Society of Chemistry, we might expect an outstanding memory. And yet he seemed reluctant to tell the court why or when he'd retired to start a new career as a chiropodist. When did he start work at Fort Halstead? In July 1974. And when did he leave? " The exact date of my leaving is a little circumspect, but I believe it was in 1990."
He actually retired in 1989, a year that for him may have been circumspect, but was, in relation to our trial, most significant. Hayes, I would discover from our own research, had an uncomfortable history in relation to one other major terrorist event, namely the IRA bombing said to involve seven members of the Maguire family - The Maguire Seven. In that trial Hayes and two close colleagues - including his immediate supervisor Dr Higgs - had performed a central and discredited role, and were found out by a Parliamentary investigation. To add to that Dr Higgs was also discovered to have conspired to mislead the court - with a further two RARDE colleagues of Hayes - in the case of Judith Ward, accused of a bombing in Guildford.
Was Hayes carefully avoiding using the numbers, "1989", so as to deter the court from forming its own conclusion? When asked by friendly advocate Campbell, Hayes could not recall when he became a chiropodist. Nor did his memory improve as he faced defence QC Richard Keen.
"KEEN. Dr Hayes, you told us in your earlier evidence that you were head of the Forensics explosives laboratory at RARDE until 1989? And your change of career from forensic scientist to chiropodist would appear to coincide in point of time with the decision of the Home Secretary to appoint Sir John May to inquire into the trial of those known as the Maguire Seven. Is that true?
HAYES. I believe so. I don't recall clearly."
I am convinced to this day that Hayes really did recall the date and reason. He simply did not dare say it in front of the judges. For in May 1989, even as he examined the fragment which appeared in the evidence bag with a label signed by Detective Constable Gilchrist and altered by unknown persons, a campaign was running in Parliament to have him and his colleagues investigated for their roles in both IRA trials. The Parliamentary findings were published in 1992 and 1996, long after the November 1991 indictments of the Libyan suspects Al-Megrahi and Fhimah.
In his study of the 1976 trial of the Maguire Seven, Sir John May found that the notebooks of three RARDE scientists, including Hayes, had been consciously withheld from the court. The first of the three was Douglas Higgs, Principal Scientific Officer and head of department; second was Walter Elliott, a Senior Scientific Officer; and the third was Hayes, at that time a Higher Scientific Officer.
During the trial, results of tests for traces of nitro-glycerine on skin and fingernails of the Maguire family were firmly maintained by the three scientists to be positive and decisive. Unknown to the court, however, the three had performed a second set of tests plus a series of experiments. Both tests and experiments indicated a negative result and an innocent means of contamination. They therefore knew of evidence pointing to the innocence of the accused yet failed to inform the court. Furthermore, during the inquiry their notebooks were disclosed to Sir John May only at the final "hearing" stage of that Inquiry. Thus he was forced to view the case files only on the last day of his public hearings.
Sir John recorded his unease at the delay, and concluded: "In all the elements of the prosecution case the Crown relied on the evidence of three RARDE scientists. Their accuracy, reliability, fairness and credibility were fundamental to the convictions. In my opinion the whole scientific basis upon which the prosecution was founded was so vitiated that on this basis alone the Court of Appeal should set aside the convictions."
Then the Judith Ward case: in February 1974 twelve people were killed in an IRA bombing attack on a military bus in Guildford. Ward was arrested, and in an almost exact parallel to the Maguire case, the evidence central to her conviction was an analysis of samples taken from the skin and fingernails. These, maintained three lying scientists, were evidence of her guilt. In November of 1974 she was sentenced to life imprisonment. She would spend fifteen years in jail before her innocence could be established.
Hers was one of a spate of miscarriages of justice including the Maguire case and the Birmingham Six. In every appeal, the manipulation of evidence by RARDE forensic scientists was a major feature of the convictions, and its exposure the cause of successful appeals.
Of the dishonesty revealed in the Ward case Lord Justice Glidewell observed that the catalogue of the lamentable omissions included "failure to reveal actual test results, the failure to reveal discrepant Rf values, the suppression of the boot polishing experimental data, the misrepresentation the first firing cell test results, economical witness statements calculated to obstruct inquiry by the defence, and most important of all, oral evidence at the trial in the course of which three senior RARDE scientists knowingly placed a false and distorted picture before the jury. It is, in our judgement, also a necessary inference that the three senior RARDE forensic scientists acted in concert in withholding material evidence."
Of Higgs Lord Justice Glidewell commented "We reject Mr Higgs' account as a deliberate falsehood" Higgs was, in the words of the appeal panel "An experienced chemist… the head of a closely knit team." The words "deliberate falsehood" are clear. The man and two senior members of his organisation were nothing less than liars.
Dealing with another item of evidence, an apparently bomb damaged suitcase, prosecution advocate Campbell QC led Hayes through what seemed an endless list of items in his detailed schedule. The catalogue droned onward for seventy six pages of transcript. Suddenly Hayes reached a thirteen word sentence, almost hidden from, and mostly missed by, the court and the relatives. It was quietly read: "… The suitcase was fitted with a rigid plastics handle, bright metal trim and locks, which were devoid of any proprietary or owner's identification. A rectangular hole had been cut in the hard shell above the handle. The left-hand edge of the suitcase showed evidence of having been damaged by an explosion, with disruption and blackening of the outer skin and bright metal body frame, [etc]
The suitcase belonged to Major Charles McKee, leader of a four-man CIA team returning from Beirut. He, with colleagues Gannon, Lariviere, and O'Connor, were on a mission to explore ways of freeing a group of American hostages held in Lebanon by Iranian-based terrorists. McKee's suitcase contained something that the US government were desperate to keep from the sight of the media or the public. That something remains so important to America's security that for twenty years the White House has never even hinted at what it might be.
McKee's case had been removed by unknown persons, a rectangular hole expertly sawn just below the handle, the contents taken away and new contents put in. Security suitcases of this type were fitted with an incendiary explosive device on the interior of the case, just by the handle. Should the suitcase be opened without the use of a security code, the suitcase would explode and incinerate the contents. Hence the hole sawn into the case to enable disablement of the explosive trigger. A clean set of clothes were inserted and the case was returned to the crime scene and placed on a Lockerbie hillside so that it could be "found". The removal of evidence from a crime scene is of itself a criminal offence. Yet nothing would be said of it in the trial by the prosecution or the judges.
It was and is - for me - a disturbing tale. How had Hayes, publicly demonstrated as untrustworthy, and working in a close-knit organisation discredited by two major criminal cases, become so central to the Lockerbie tragedy? His repeated plays on words, his professions of innocence, his claims of forgetfulness, all were greatly worrying. As a skilled forensic scientist he should have been immediately alerted by the tampering that took place between the finding of McKee's suitcase and its arrival in his laboratory. Label, name tag and contents had been removed, and a set of clothes put into the case. These were recorded as to '...show no evidence of explosive damage, as opposed to the suitcase which was damaged.' It was as if a new set of clothes had been put into the case. And when writing notes about the identification tags and name tag of the suitcase, instead of using the word 'removed', Hayes chose the words 'devoid of'; technically correct, but in the true sense meaning simply not there. What most worried me, and auguring badly for whatever verdict might follow, was the nature of Lord Sutherland's interjection. His Lordship saw intelligence service interference with the trial process and illegal tampering with evidence as no cause for concern. It seemed to me that he was not the first senior trial judge to be fooled by RARDE's economical witness statements calculated to obstruct inquiry by the defence.
"KEEN. A rectangular hole has been cut in the top of the case, and that cannot be attributed in any form to blast damage or impact damage in the disaster, can it?
HAYES. No, it cannot.
KEEN. You are presented with the alleged contents in a bag marked with the name of the owner of the case? That wasn't usual, so far as the presentation of evidence to you at RARDE was concerned, was it?
HAYES. I don't think I can helpfully answer your question. I don't know.
KEEN. You have no recollection of other cases being presented to you in this fashion, for the purposes of your forensic examination?
HAYES. A case outside this Lockerbie investigation?
KEEN. Outside this particular case on page 22.
HAYES. The suitcase?
KEEN. The suitcase.
HAYES. No particular recollection, no.
KEEN. What appears to have happened, Dr. Hayes, in respect of this case, is that it has been the subject of interference or intromission by some third party.
HAYES. The cut hole would seem to suggest that. The rest of the observations may have some quite innocent explanation.
KEEN. Well, was any innocent explanation proffered to you for the state of this evidence when it was given to you for forensic examination at RARDE?
HAYES. I never asked for an explanation.
KEEN. Was any explanation ever volunteered to you?
HAYES. I'm sorry, I don't recall."
Under further cross-examination Hayes was unable to explain his notes concerning a fragment of circuit board from the MEBO MST-13 timer which was said to be part of the bomb. He found and identified it on 12th May 1989, labelling it "PT35-B" on page fifty one of his one hundred and seventy two page loose-leaf notebook. He would maintain that he was the first person to observe this, finding it in the evidence bag signed and dated by DC Gilchrist, mentioned above.
Hayes said he always kept detailed notes, yet his sheets were strangely renumbered for all pages subsequent to that containing information on the circuit board fragment. Was that particular page later written up and inserted so as to create the illusion of a contemporaneous sequence of entries? Richard Keen tried to extract the truth:
"KEEN. Well, whether it be the date or the page number, Dr. Hayes, would you like to explain how the present page fifty one came to be in your examination notes?
HAYES. How it came to be there?
KEEN. Yes.
HAYES. I'm rather lost for words. It came to be there in exactly the same way as every other page came to be there.
KEEN. If that was the case, Dr. Hayes, the pagination of your notes would run quite simply from pages fifty to fifty six, without the need for the alterations that have been made in the pagination of the notes themselves, and the index; is that not the case?
HAYES. Well, I can understand you expressing some concern on page fifty two onwards. But to my mind, fifty two follows from page fifty one, page fifty one follows from page fifty in a perfectly normal way.
KEEN. But page fifty one can only be there because what preceded it as page fifty one has been changed to page fifty two; is that not equally obvious, Dr. Hayes?
HAYES. Well, otherwise there would be two pages fifty one, of course.
KEEN. And what would have appeared at the end of pages fifty two to fifty six now appears at the bottom half of page forty nine? That is the entry for PI/991.
HAYES. Well, the mystery -- apparent mystery of the entry on the bottom of page forty nine, PI/991, to my mind is no more complex than there was space available on the page. And rather than waste part of the page, I inserted an examination note and dated it. The pagination, to me, is of no great consequence. The date and day of the examination, to me, is of much greater consequence.
KEEN. Well, I understood you to tell us that these were contemporaneous notes that you prepared as you were carrying out your examinations; is that right?
HAYES. Yes. But presumably our definitions of "contemporaneous" are different. My -- I only mean that these notes were written on the date on the page, and that the notes were written at the time precisely of the examination, and not any time afterwards.
KEEN. Well, if that had been the case, there would have been no need for the insertion of what is now page fifty one, would there?
HAYES. Well, it is your suggestion that it was inserted. I have no recollection of an insertion of that form at all. If it was, then it was done for a particularly good and perfectly innocent reason.
KEEN. Which you can't now recollect?
HAYES. I wish I could help you. It would save a lot of awkwardness. But I cannot, no."
He was then re-examined by friendly prosecution advocate Campbell, who steered him methodically through his notes on those same pages. Suddenly, lo and behold, Hayes remembered it all.
"CAMPBELL. Does that explanation of the way in which the items detailed in examination notes are listed help to jog your memory?
HAYES. It has helped me, sir, in attempting to explain what appears to be an unfathomable mystery. And I think the solution is very straightforward. And it is this: That when I wrote these notes, I initially did not number the pages… And in numbering the pages, I mistakenly used the number 51 twice, realised my error, after numbering a few pages, and corrected it… So whereas the page numbers may be in sequential order, the dates would not be."
This sudden flash of recall under Campbell's friendly re-examination for me remains unconvincing, and differed totally from his previous explanation, namely that "… the mystery was no more complex than there was space available on the page. And rather than waste part of the page, I inserted an examination note and dated it." As I watched him playing games with the defence, I became more and more convinced that he was misleading the court so as to achieve a prosecution, and not for the first time. He may have made notes, but unlike all similar items which he found, the sole piece of material evidence, PT/35B, claimed to link Bollier and MEBO to the Libyans, was absent from his drawings. And he gave it a higher identification number in his index than a similar sized piece of material he was to examine four weeks later.
Then as Richard Keen probed further concerning the fragment of shirt collar found by Detective Constable Gilchrist, Hayes could not quite remember the moment of finding the fragment.
"KEEN. Do you actually recall finding this fragment?
HAYES. I think so. If I was -- it's tempting to be too helpful in answering your question and saying clearly a very important piece, you must have a memory of it. You have flashbacks of certain important items that you've looked at. I question whether those are flashbacks to the correct case examination or another case examination. So although in my mind there is no question whatever that I did find it within this neck-band, whether I have a clear recollection in my memory of teasing it out, I would prefer not to be too definite about it."
Finally Hayes' notes dated 12th May 1989 recorded the following: "Trapped in the grey material within the blackened area were A. several fragments of black plastics, B. a fragment of a green-coloured circuit board". Thus he exposed, in an unguarded moment, a serious discrepancy from the evidence previously given by DC Thomas Gilchrist.
"KEEN. Dr Hayes, you record in those notes on page fifty one that PT/35B was trapped in the collar of a shirt or in a piece of material. So that fragment could not, presumably, have come to light as far as the police were concerned, prior to it being extracted from the cloth by yourself?
HAYES. That's correct. Yes.
KEEN. It would follow that it could not have been seen by the police prior to the cloth being passed to you at RARDE and the article being extracted by you from the trapped area of material?
HAYES. I'm sure that is the case."
Thus he twice maintained that neither Gilchrist - nor anyone else - could have seen the fragment prior to his probing the collar on his workbench. So we may ask when was the label altered to "DEBRIS", and by whom? More importantly, for what purpose was the label altered, other than to draw attention to a piece of "debris" inserted into the bag by persons unknown? That discrepancy was never challenged either during the trial nor at the subsequent appeal.
In yet another puzzling exchange with Richard Keen, Hayes admitted that even though his initial conclusion was that the green fragment - PT35/B - was a fragment from a bomb timer, he failed to undertake a routine chemical trace analysis to determine whether it had been in contact with an explosion. This was quite contrary to standard forensic process, and can only be described as negligence. It contrasted with the chemical trace analyses he undertook of each of the twenty four pieces of luggage surrounding the immediate explosion of which the fragment was a component. In spite of prolonged cross-examination, Hayes could provide no logical explanation for it. Or, perhaps, did Hayes know what he would find, namely that the fragment possessed no trace of explosive? Only a controlled analysis by an independent forensic scientist might test the fragment's provenance. And that could not occur without a special form of appeal. Such would not prove possible until the year 2009, and I will return to this subject later in this book.
Meanwhile in Kamp Zeist the judges had only Hayes’ word. They knew of his record as a conspirator in with-holding evidence in a major IRA trial, and that of his immediate colleagues in a second IRA trial. They watched his contrasting explanations regarding the pagination of his notebook and the sudden return of his memory when gently steered under re-examination by the prosecution. They witnessed his word games regarding McKee's suitcase - illegal evidence tampering by the intelligence services of either the United Kingdom or America. They listened to him twice claim that he was the first to find debris - the fragment of the bomb - in the evidence bag, and that therefore neither Gilchrist nor anyone else could have seen it before he did. Yet instead of basing their judgement on what Hayes actually said, they would substitute their own explanations and believe the man implicitly.
Hundreds of fragments from the luggage container and its contents were discovered. From the remains of the Toshiba cassette recorder that contained the bomb; from twenty four items of luggage in the immediate vicinity of the explosion; from clothing and personal effects; even from a black umbrella. For me it was not unreasonable to expect many fragments from the bomb and timer, the wires, the circuits, the frame, the timer itself, to be embedded in surrounding clothing and luggage, the luggage container, the aircraft spars and structure. Yet apart from a charred shirt collar, none contained a single fragment of the bomb. The fragment too, when displayed before the court, and apart from fraying around the edges (said to have been done by laboratory processing), was almost pristine. Its bright green anti-solder covering was still bright green. Its printed circuits remained just as pristine. Both in spite of its position at the centre of a three thousand degree high explosive fireball.
In time I would watch witness Allan Feraday, who prepared the final forensic report for the trial, confirm under oath that only one fragment - the Hayes four millimetre square piece of "debris" - was ever found. That of itself seemed an unusual occurrence. I found myself asking how much other material might have been removed, or re-inserted, or even planted. One of Cannistraro's colleagues in the White House had discussed the use of manufactured evidence to destabilise a middle eastern government. If such was good for Yemen, then why not for Libya? Yet in spite of my suspicions - also shared by many of those following the progress of the trial - the miraculous fragment would pass without challenge.
CIA had duplicate timers.
"There has been some speculation about timers from that same series being provided to STASI [The East German Secret Police, prior to the fall of the Berlin Wall in 1989], and it's true that they were. But they were on brown circuit boards. The circuit board that was used in the explosion at Lockerbie was a green production model of the timer, and that came from Libyan intelligence." So spoke Vincent Cannistraro into the camera in 1993. His words were of interest, not for what he said, but for what he did not say. During that time, unknown to the public and the media, within the storeroom of the CIA laboratories in Langley Virginia lay at least one exact duplicate of an MST-13 timer. It was set on a green lacquered baseboard identical to the type from which the Hayes fragment was said to have originated.
8th June 2000.
A column of vans with blacked-out windows glided to a halt at the entrance to the court building. Shielded from public and journalist gaze several men were ushered into the rear entrance.
One of the men was witness Richard Louis Sherrow, a retired US Army veteran of twenty years' service, and an expert in firearms and explosives, who'd worked for the U.S. Alcohol, Tobacco and Firearms Service (ATF). Prosecution advocate Turnbull led Sherrow through his evidence-in-chief. In 1986 Sherrow had been instructed by the ATF to travel to Lome, Togo, with an Edward Owen of the ATF, and James Casey of the State Department. During the visit, Sherrow observed a number of items, including explosives and several timers. One timer was of special interest to him.
"TURNBULL: Had you ever seen electronic timers similar to the ones you saw in Lome?
SHERROW: Not exactly similar, no, sir. Subsequently, I was allowed to take one timer and a sample of, I believe, three different types of explosives. They were placed in the United States diplomatic pouch and returned. I examined [the timer] at the headquarters of Alcohol, Tobacco, and Firearms, performed bench tests, functioning tests.
TURNBULL: Did you photograph it at the headquarters?
SHERROW: Yes, I did.
TURNBULL: And having performed these tests and photographed it, what did you then do with it?
SHERROW: I was requested to take it to CIA headquarters in Langley, Virginia, and give a briefing on what I found.
TURNBULL: And did you take the timer back with you?
SHERROW: No, I didn't. That was released to their custody."
Dr Thomas Hayes was formerly head of the forensics explosives laboratory at the British Royal Armaments Research and Defence Establishment (RARDE), and was a key witness in the prosecution case. I would find his evidence at times breathtaking and worrying.
He was aged fifty three, having retired from his RARDE post ten years earlier. As a bachelor of science honours in chemistry, a master of science in the faculty of forensic science, a doctor of philosophy in the faculty of forensic science, a chartered chemist, and a member of the Royal Society of Chemistry, we might expect an outstanding memory. And yet he seemed reluctant to tell the court why or when he'd retired to start a new career as a chiropodist. When did he start work at Fort Halstead? In July 1974. And when did he leave? " The exact date of my leaving is a little circumspect, but I believe it was in 1990."
He actually retired in 1989, a year that for him may have been circumspect, but was, in relation to our trial, most significant. Hayes, I would discover from our own research, had an uncomfortable history in relation to one other major terrorist event, namely the IRA bombing said to involve seven members of the Maguire family - The Maguire Seven. In that trial Hayes and two close colleagues - including his immediate supervisor Dr Higgs - had performed a central and discredited role, and were found out by a Parliamentary investigation. To add to that Dr Higgs was also discovered to have conspired to mislead the court - with a further two RARDE colleagues of Hayes - in the case of Judith Ward, accused of a bombing in Guildford.
Was Hayes carefully avoiding using the numbers, "1989", so as to deter the court from forming its own conclusion? When asked by friendly advocate Campbell, Hayes could not recall when he became a chiropodist. Nor did his memory improve as he faced defence QC Richard Keen.
"KEEN. Dr Hayes, you told us in your earlier evidence that you were head of the Forensics explosives laboratory at RARDE until 1989? And your change of career from forensic scientist to chiropodist would appear to coincide in point of time with the decision of the Home Secretary to appoint Sir John May to inquire into the trial of those known as the Maguire Seven. Is that true?
HAYES. I believe so. I don't recall clearly."
I am convinced to this day that Hayes really did recall the date and reason. He simply did not dare say it in front of the judges. For in May 1989, even as he examined the fragment which appeared in the evidence bag with a label signed by Detective Constable Gilchrist and altered by unknown persons, a campaign was running in Parliament to have him and his colleagues investigated for their roles in both IRA trials. The Parliamentary findings were published in 1992 and 1996, long after the November 1991 indictments of the Libyan suspects Al-Megrahi and Fhimah.
In his study of the 1976 trial of the Maguire Seven, Sir John May found that the notebooks of three RARDE scientists, including Hayes, had been consciously withheld from the court. The first of the three was Douglas Higgs, Principal Scientific Officer and head of department; second was Walter Elliott, a Senior Scientific Officer; and the third was Hayes, at that time a Higher Scientific Officer.
During the trial, results of tests for traces of nitro-glycerine on skin and fingernails of the Maguire family were firmly maintained by the three scientists to be positive and decisive. Unknown to the court, however, the three had performed a second set of tests plus a series of experiments. Both tests and experiments indicated a negative result and an innocent means of contamination. They therefore knew of evidence pointing to the innocence of the accused yet failed to inform the court. Furthermore, during the inquiry their notebooks were disclosed to Sir John May only at the final "hearing" stage of that Inquiry. Thus he was forced to view the case files only on the last day of his public hearings.
Sir John recorded his unease at the delay, and concluded: "In all the elements of the prosecution case the Crown relied on the evidence of three RARDE scientists. Their accuracy, reliability, fairness and credibility were fundamental to the convictions. In my opinion the whole scientific basis upon which the prosecution was founded was so vitiated that on this basis alone the Court of Appeal should set aside the convictions."
Then the Judith Ward case: in February 1974 twelve people were killed in an IRA bombing attack on a military bus in Guildford. Ward was arrested, and in an almost exact parallel to the Maguire case, the evidence central to her conviction was an analysis of samples taken from the skin and fingernails. These, maintained three lying scientists, were evidence of her guilt. In November of 1974 she was sentenced to life imprisonment. She would spend fifteen years in jail before her innocence could be established.
Hers was one of a spate of miscarriages of justice including the Maguire case and the Birmingham Six. In every appeal, the manipulation of evidence by RARDE forensic scientists was a major feature of the convictions, and its exposure the cause of successful appeals.
Of the dishonesty revealed in the Ward case Lord Justice Glidewell observed that the catalogue of the lamentable omissions included "failure to reveal actual test results, the failure to reveal discrepant Rf values, the suppression of the boot polishing experimental data, the misrepresentation the first firing cell test results, economical witness statements calculated to obstruct inquiry by the defence, and most important of all, oral evidence at the trial in the course of which three senior RARDE scientists knowingly placed a false and distorted picture before the jury. It is, in our judgement, also a necessary inference that the three senior RARDE forensic scientists acted in concert in withholding material evidence."
Of Higgs Lord Justice Glidewell commented "We reject Mr Higgs' account as a deliberate falsehood" Higgs was, in the words of the appeal panel "An experienced chemist… the head of a closely knit team." The words "deliberate falsehood" are clear. The man and two senior members of his organisation were nothing less than liars.
Dealing with another item of evidence, an apparently bomb damaged suitcase, prosecution advocate Campbell QC led Hayes through what seemed an endless list of items in his detailed schedule. The catalogue droned onward for seventy six pages of transcript. Suddenly Hayes reached a thirteen word sentence, almost hidden from, and mostly missed by, the court and the relatives. It was quietly read: "… The suitcase was fitted with a rigid plastics handle, bright metal trim and locks, which were devoid of any proprietary or owner's identification. A rectangular hole had been cut in the hard shell above the handle. The left-hand edge of the suitcase showed evidence of having been damaged by an explosion, with disruption and blackening of the outer skin and bright metal body frame, [etc]
The suitcase belonged to Major Charles McKee, leader of a four-man CIA team returning from Beirut. He, with colleagues Gannon, Lariviere, and O'Connor, were on a mission to explore ways of freeing a group of American hostages held in Lebanon by Iranian-based terrorists. McKee's suitcase contained something that the US government were desperate to keep from the sight of the media or the public. That something remains so important to America's security that for twenty years the White House has never even hinted at what it might be.
McKee's case had been removed by unknown persons, a rectangular hole expertly sawn just below the handle, the contents taken away and new contents put in. Security suitcases of this type were fitted with an incendiary explosive device on the interior of the case, just by the handle. Should the suitcase be opened without the use of a security code, the suitcase would explode and incinerate the contents. Hence the hole sawn into the case to enable disablement of the explosive trigger. A clean set of clothes were inserted and the case was returned to the crime scene and placed on a Lockerbie hillside so that it could be "found". The removal of evidence from a crime scene is of itself a criminal offence. Yet nothing would be said of it in the trial by the prosecution or the judges.
It was and is - for me - a disturbing tale. How had Hayes, publicly demonstrated as untrustworthy, and working in a close-knit organisation discredited by two major criminal cases, become so central to the Lockerbie tragedy? His repeated plays on words, his professions of innocence, his claims of forgetfulness, all were greatly worrying. As a skilled forensic scientist he should have been immediately alerted by the tampering that took place between the finding of McKee's suitcase and its arrival in his laboratory. Label, name tag and contents had been removed, and a set of clothes put into the case. These were recorded as to '...show no evidence of explosive damage, as opposed to the suitcase which was damaged.' It was as if a new set of clothes had been put into the case. And when writing notes about the identification tags and name tag of the suitcase, instead of using the word 'removed', Hayes chose the words 'devoid of'; technically correct, but in the true sense meaning simply not there. What most worried me, and auguring badly for whatever verdict might follow, was the nature of Lord Sutherland's interjection. His Lordship saw intelligence service interference with the trial process and illegal tampering with evidence as no cause for concern. It seemed to me that he was not the first senior trial judge to be fooled by RARDE's economical witness statements calculated to obstruct inquiry by the defence.
"KEEN. A rectangular hole has been cut in the top of the case, and that cannot be attributed in any form to blast damage or impact damage in the disaster, can it?
HAYES. No, it cannot.
KEEN. You are presented with the alleged contents in a bag marked with the name of the owner of the case? That wasn't usual, so far as the presentation of evidence to you at RARDE was concerned, was it?
HAYES. I don't think I can helpfully answer your question. I don't know.
KEEN. You have no recollection of other cases being presented to you in this fashion, for the purposes of your forensic examination?
HAYES. A case outside this Lockerbie investigation?
KEEN. Outside this particular case on page 22.
HAYES. The suitcase?
KEEN. The suitcase.
HAYES. No particular recollection, no.
KEEN. What appears to have happened, Dr. Hayes, in respect of this case, is that it has been the subject of interference or intromission by some third party.
HAYES. The cut hole would seem to suggest that. The rest of the observations may have some quite innocent explanation.
KEEN. Well, was any innocent explanation proffered to you for the state of this evidence when it was given to you for forensic examination at RARDE?
HAYES. I never asked for an explanation.
KEEN. Was any explanation ever volunteered to you?
HAYES. I'm sorry, I don't recall."
Under further cross-examination Hayes was unable to explain his notes concerning a fragment of circuit board from the MEBO MST-13 timer which was said to be part of the bomb. He found and identified it on 12th May 1989, labelling it "PT35-B" on page fifty one of his one hundred and seventy two page loose-leaf notebook. He would maintain that he was the first person to observe this, finding it in the evidence bag signed and dated by DC Gilchrist, mentioned above.
Hayes said he always kept detailed notes, yet his sheets were strangely renumbered for all pages subsequent to that containing information on the circuit board fragment. Was that particular page later written up and inserted so as to create the illusion of a contemporaneous sequence of entries? Richard Keen tried to extract the truth:
"KEEN. Well, whether it be the date or the page number, Dr. Hayes, would you like to explain how the present page fifty one came to be in your examination notes?
HAYES. How it came to be there?
KEEN. Yes.
HAYES. I'm rather lost for words. It came to be there in exactly the same way as every other page came to be there.
KEEN. If that was the case, Dr. Hayes, the pagination of your notes would run quite simply from pages fifty to fifty six, without the need for the alterations that have been made in the pagination of the notes themselves, and the index; is that not the case?
HAYES. Well, I can understand you expressing some concern on page fifty two onwards. But to my mind, fifty two follows from page fifty one, page fifty one follows from page fifty in a perfectly normal way.
KEEN. But page fifty one can only be there because what preceded it as page fifty one has been changed to page fifty two; is that not equally obvious, Dr. Hayes?
HAYES. Well, otherwise there would be two pages fifty one, of course.
KEEN. And what would have appeared at the end of pages fifty two to fifty six now appears at the bottom half of page forty nine? That is the entry for PI/991.
HAYES. Well, the mystery -- apparent mystery of the entry on the bottom of page forty nine, PI/991, to my mind is no more complex than there was space available on the page. And rather than waste part of the page, I inserted an examination note and dated it. The pagination, to me, is of no great consequence. The date and day of the examination, to me, is of much greater consequence.
KEEN. Well, I understood you to tell us that these were contemporaneous notes that you prepared as you were carrying out your examinations; is that right?
HAYES. Yes. But presumably our definitions of "contemporaneous" are different. My -- I only mean that these notes were written on the date on the page, and that the notes were written at the time precisely of the examination, and not any time afterwards.
KEEN. Well, if that had been the case, there would have been no need for the insertion of what is now page fifty one, would there?
HAYES. Well, it is your suggestion that it was inserted. I have no recollection of an insertion of that form at all. If it was, then it was done for a particularly good and perfectly innocent reason.
KEEN. Which you can't now recollect?
HAYES. I wish I could help you. It would save a lot of awkwardness. But I cannot, no."
He was then re-examined by friendly prosecution advocate Campbell, who steered him methodically through his notes on those same pages. Suddenly, lo and behold, Hayes remembered it all.
"CAMPBELL. Does that explanation of the way in which the items detailed in examination notes are listed help to jog your memory?
HAYES. It has helped me, sir, in attempting to explain what appears to be an unfathomable mystery. And I think the solution is very straightforward. And it is this: That when I wrote these notes, I initially did not number the pages… And in numbering the pages, I mistakenly used the number 51 twice, realised my error, after numbering a few pages, and corrected it… So whereas the page numbers may be in sequential order, the dates would not be."
This sudden flash of recall under Campbell's friendly re-examination for me remains unconvincing, and differed totally from his previous explanation, namely that "… the mystery was no more complex than there was space available on the page. And rather than waste part of the page, I inserted an examination note and dated it." As I watched him playing games with the defence, I became more and more convinced that he was misleading the court so as to achieve a prosecution, and not for the first time. He may have made notes, but unlike all similar items which he found, the sole piece of material evidence, PT/35B, claimed to link Bollier and MEBO to the Libyans, was absent from his drawings. And he gave it a higher identification number in his index than a similar sized piece of material he was to examine four weeks later.
Then as Richard Keen probed further concerning the fragment of shirt collar found by Detective Constable Gilchrist, Hayes could not quite remember the moment of finding the fragment.
"KEEN. Do you actually recall finding this fragment?
HAYES. I think so. If I was -- it's tempting to be too helpful in answering your question and saying clearly a very important piece, you must have a memory of it. You have flashbacks of certain important items that you've looked at. I question whether those are flashbacks to the correct case examination or another case examination. So although in my mind there is no question whatever that I did find it within this neck-band, whether I have a clear recollection in my memory of teasing it out, I would prefer not to be too definite about it."
Finally Hayes' notes dated 12th May 1989 recorded the following: "Trapped in the grey material within the blackened area were A. several fragments of black plastics, B. a fragment of a green-coloured circuit board". Thus he exposed, in an unguarded moment, a serious discrepancy from the evidence previously given by DC Thomas Gilchrist.
"KEEN. Dr Hayes, you record in those notes on page fifty one that PT/35B was trapped in the collar of a shirt or in a piece of material. So that fragment could not, presumably, have come to light as far as the police were concerned, prior to it being extracted from the cloth by yourself?
HAYES. That's correct. Yes.
KEEN. It would follow that it could not have been seen by the police prior to the cloth being passed to you at RARDE and the article being extracted by you from the trapped area of material?
HAYES. I'm sure that is the case."
Thus he twice maintained that neither Gilchrist - nor anyone else - could have seen the fragment prior to his probing the collar on his workbench. So we may ask when was the label altered to "DEBRIS", and by whom? More importantly, for what purpose was the label altered, other than to draw attention to a piece of "debris" inserted into the bag by persons unknown? That discrepancy was never challenged either during the trial nor at the subsequent appeal.
In yet another puzzling exchange with Richard Keen, Hayes admitted that even though his initial conclusion was that the green fragment - PT35/B - was a fragment from a bomb timer, he failed to undertake a routine chemical trace analysis to determine whether it had been in contact with an explosion. This was quite contrary to standard forensic process, and can only be described as negligence. It contrasted with the chemical trace analyses he undertook of each of the twenty four pieces of luggage surrounding the immediate explosion of which the fragment was a component. In spite of prolonged cross-examination, Hayes could provide no logical explanation for it. Or, perhaps, did Hayes know what he would find, namely that the fragment possessed no trace of explosive? Only a controlled analysis by an independent forensic scientist might test the fragment's provenance. And that could not occur without a special form of appeal. Such would not prove possible until the year 2009, and I will return to this subject later in this book.
Meanwhile in Kamp Zeist the judges had only Hayes’ word. They knew of his record as a conspirator in with-holding evidence in a major IRA trial, and that of his immediate colleagues in a second IRA trial. They watched his contrasting explanations regarding the pagination of his notebook and the sudden return of his memory when gently steered under re-examination by the prosecution. They witnessed his word games regarding McKee's suitcase - illegal evidence tampering by the intelligence services of either the United Kingdom or America. They listened to him twice claim that he was the first to find debris - the fragment of the bomb - in the evidence bag, and that therefore neither Gilchrist nor anyone else could have seen it before he did. Yet instead of basing their judgement on what Hayes actually said, they would substitute their own explanations and believe the man implicitly.
Hundreds of fragments from the luggage container and its contents were discovered. From the remains of the Toshiba cassette recorder that contained the bomb; from twenty four items of luggage in the immediate vicinity of the explosion; from clothing and personal effects; even from a black umbrella. For me it was not unreasonable to expect many fragments from the bomb and timer, the wires, the circuits, the frame, the timer itself, to be embedded in surrounding clothing and luggage, the luggage container, the aircraft spars and structure. Yet apart from a charred shirt collar, none contained a single fragment of the bomb. The fragment too, when displayed before the court, and apart from fraying around the edges (said to have been done by laboratory processing), was almost pristine. Its bright green anti-solder covering was still bright green. Its printed circuits remained just as pristine. Both in spite of its position at the centre of a three thousand degree high explosive fireball.
In time I would watch witness Allan Feraday, who prepared the final forensic report for the trial, confirm under oath that only one fragment - the Hayes four millimetre square piece of "debris" - was ever found. That of itself seemed an unusual occurrence. I found myself asking how much other material might have been removed, or re-inserted, or even planted. One of Cannistraro's colleagues in the White House had discussed the use of manufactured evidence to destabilise a middle eastern government. If such was good for Yemen, then why not for Libya? Yet in spite of my suspicions - also shared by many of those following the progress of the trial - the miraculous fragment would pass without challenge.
CIA had duplicate timers.
"There has been some speculation about timers from that same series being provided to STASI [The East German Secret Police, prior to the fall of the Berlin Wall in 1989], and it's true that they were. But they were on brown circuit boards. The circuit board that was used in the explosion at Lockerbie was a green production model of the timer, and that came from Libyan intelligence." So spoke Vincent Cannistraro into the camera in 1993. His words were of interest, not for what he said, but for what he did not say. During that time, unknown to the public and the media, within the storeroom of the CIA laboratories in Langley Virginia lay at least one exact duplicate of an MST-13 timer. It was set on a green lacquered baseboard identical to the type from which the Hayes fragment was said to have originated.
8th June 2000.
A column of vans with blacked-out windows glided to a halt at the entrance to the court building. Shielded from public and journalist gaze several men were ushered into the rear entrance.
One of the men was witness Richard Louis Sherrow, a retired US Army veteran of twenty years' service, and an expert in firearms and explosives, who'd worked for the U.S. Alcohol, Tobacco and Firearms Service (ATF). Prosecution advocate Turnbull led Sherrow through his evidence-in-chief. In 1986 Sherrow had been instructed by the ATF to travel to Lome, Togo, with an Edward Owen of the ATF, and James Casey of the State Department. During the visit, Sherrow observed a number of items, including explosives and several timers. One timer was of special interest to him.
"TURNBULL: Had you ever seen electronic timers similar to the ones you saw in Lome?
SHERROW: Not exactly similar, no, sir. Subsequently, I was allowed to take one timer and a sample of, I believe, three different types of explosives. They were placed in the United States diplomatic pouch and returned. I examined [the timer] at the headquarters of Alcohol, Tobacco, and Firearms, performed bench tests, functioning tests.
TURNBULL: Did you photograph it at the headquarters?
SHERROW: Yes, I did.
TURNBULL: And having performed these tests and photographed it, what did you then do with it?
SHERROW: I was requested to take it to CIA headquarters in Langley, Virginia, and give a briefing on what I found.
TURNBULL: And did you take the timer back with you?
SHERROW: No, I didn't. That was released to their custody."
Monday, 6 October 2008
US opens trade office in Libya
It is being reported by various news media, relying on AFP which itself relies on the Libyan news agency JANA, that the United States yesterday (Sunday) opened a trade office in Tripoli. The most detailed report that I can find is on the RTTNews website. It can be read here.
Subscribe to:
Posts (Atom)