This dreadful case demolished confidence in justice system

On this date in 2010, three items were published on this blog that perhaps merit a second glance. The first item is headed Lord Advocate condemned as ‘disastrous’. Here are a few sentences:

The appointment of Elish Angiolini as Scotland’s Lord Advocate was “a disastrous experiment which should never be repeated”, according to one of the country’s leading QCs.

Robert Black, Professor Emeritus of Law at the University of Edinburgh, condemned Ms Angiolini — who announced her resignation last week — as “a Crown Office staffer” (...)

The criticism from such a senior legal figure is the first open expression of a wider discontent within some sections of the legal establishment, which has simmered since the appointment four years ago of Ms Angiolini, the former Solicitor General and a former head of policy at the Crown Office.

“She had never in her working life spent a day outside the Crown Office, when the whole point of a Lord Advocate is that he or she is not a Crown Office creature,” Professor Black said.

“That’s why she was the wrong appointment: not because she was a solicitor, not because she was a woman — she would have been [an] ideal Crown Agent [the civil service head of the Crown Office], but she was entirely the wrong person be Lord Advocate.”

He added: “It is to be hoped that it will be recognised that the appointment of a Crown Office staffer as Lord Advocate was a disastrous experiment which should never be repeated.”

The second item is headed The Lockerbie Trial - Dr Jim Swire questions the guilty verdict and reproduced in part an article written for Newsnet Scotland. Here are a few sentences:

I remain at a loss as to why their Lordships failed to see the weaknesses of the prosecution’s case. As usual it is easy to criticise them in retrospect, but this seems to me an unfair and unproductive exercise. Let us just mark their CVs with the phrase ‘could have done better’.

I believe we cannot leave it there: to do so would be grossly unfair to Mr Megrahi and his family, and an intolerable burden on the memory of those who died. Mr Megrahi himself now seems to wrestle with guilt feelings over having withdrawn his appeal.

Beyond that however I also believe that the outcome has severely damaged the previous good reputation of our judicial system in Scotland. That I think should concern us all, for our citizens need to be able to believe that their judicial system will act independently of political or any other improper external pressure. Indeed justice should be, and be seen to be a faithful bulwark for the citizen even against his own government should he feel unfairly treated by it.

I believe the fall-out from this dreadful case has demolished many thinking Scottish people’s confidence in the objectivity of their justice system, and that only an independent review of this case and the evidence for and against the verdict can restore that.

The third item is headed Doyen of Nationalist lawyers speaks out and reproduced a statement by Ian Hamilton QC:

"I don't think there's a lawyer in Scotland who now believes Mr Megrahi was justly convicted. The Americans were out for vengeance. Anyone with a darker skin would do. With their barrowloads of money to buy witnesses, aided by our police and prosecution, they hoodwinked our courts."

In memoriam Jock Thomson QC

It is just over one year since staunch Justice for Megrahi supporter Jock Thomson QC died. Two years ago on this date a letter from Jock headlined Career prosecutors as law officers have destroyed criminal justice system was published. What follows is the blogpost reproducing that letter:

[This is the headline over a letter in today’s edition of The Herald from Jock Thomson QC. It reads as follows:]

I see from the Scottish Legal News that Lady Stacey is to preside over a high-powered debate on the abolition of corroboration organised by the Scottish Association for the Study of Offending.

The outcome will be academic since Lord Carloway already has the green light – as ever, the devil will be in the detail.

History will show that the genesis of the destruction of our criminal justice system was the appointment of career prosecutors as law officers: beginning with (now) Dame Elish Angiolini QC as Solicitor General and continuing with a succession of senior members of Crown Office and Procurator Fiscal Service (COPFS) since who have become and will remain Lord Advocate and Solicitor General for the foreseeable future.

This has led to the unholy, unhealthy alliance of law officers and law makers: Kenny MacAskill and Frank Mulholland, in the same bed. There is no separation of powers. Constitutionally the system now is morally and mortally flawed.

The fall-out from Cadder led to the knee-jerk Cadder Reforms. Ms Angiolini's furore about lack of convictions in rape cases, many of which should never have been raised in the first place, led Mr MacAskill to appoint Lord Carloway to consider whether the law should be amended to abolish the need for corroboration. The current Lord Advocate wants to do away with the accused's right to silence and the logical follow-on from that will be to make the accused a compellable witness. Will the next inexorable draconian step be the replacement of the presumption of innocence with that of a presumption of guilt? It's beginning to look that way. And by that time there may be little or no Criminal Legal Aid.

[Here is something I wrote on this blog on 19 May 2011, when the present Lord Advocate’s appointment was announced:]

This appointment is not unexpected, but it is to be regretted. Virtually the whole of Frank Mulholland's career has been spent as a Crown Office civil servant. This is not, in my view, the right background for the incumbent of the office of Lord Advocate, one of whose functions has traditionally been to bring an outsider's perspective to the operations and policy-making of the department. Sir Humphrey Appleby was an outstanding civil servant of a particular kind, but his role was an entirely different one from that of Jim Hacker and no-one would have regarded it as appropriate that he should be translated from Permanent Secretary of the Department of Administrative Affairs to Minister (or, indeed, from Secretary of the Cabinet to Prime Minister).

The appointment by the previous Labour administration in Scotland of Elish Angiolini as Solicitor General and then as Lord Advocate was a mistake, both constitutionally and practically, as was her retention as Lord Advocate by the SNP minority government (though the political reasons for her re-appointment were understandable). It is sad that the new majority SNP Government has not taken the opportunity to return to the wholly desirable convention of appointing an advocate or solicitor from private practice to fill the office of Lord Advocate. The much-needed casting of a beady eye over the operations of the Crown Office is not to be expected from this appointee. This is deeply regrettable since such scrutiny is long overdue.

The United States Empire

[What follows is excerpted from a long article by Washington DC attorney Bruce Fein headlined The United States Empire which was published yesterday on the website of The Washington Times:]

If the United States is not an empire, the word has lost all meaning.

No sparrow falls in the forest that does not provoke a national security assessment and response.

At present, we are employing military force in six countries — Syria, Iraq, Afghanistan, Pakistan, Yemen, and Somalia.

In 2011, we reduced Libya to rubble after Muammar Gaddafi did our bidding in abandoning weapons of mass destruction and in paying more than $1 billion to compensate for the Pan Am Flight 103 bombing over Lockerbie, Scotland. (...)

We dot the planet with hundreds of military bases.

We police the oceans with aircraft carriers, submarines and battleships.

We dominate the skies with spy satellites, stealth aircraft, and hundreds of fighters and bombers.

We have outstanding economic sanctions against 20 nations for bad behavior.

We control cyberspace with the ubiquitous collection, retention, and search of electronic communications of friend and foe alike.

We expend $1 trillion annually on national security, a sum more than the collective defense expenditures of the rest of the world.

We honor secrecy more than transparency, a quest for a risk-free existence more than liberty.

We bedeck the presidency with the trappings of a Roman emperor, including a bloated Pretorian Guard and a White House staff approaching 500. Roads are closed and traffic stops whenever the president travels. (...)

In sum, the United States has become a full-fledged empire.

Acknowledging this truth is the first step to curing the disease. Otherwise, self-ruination will be our fate. As Abraham Lincoln presciently lectured: “At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”

More than a miscarriage of justice - a judicial scandal

[I have only today become aware of a long article on the Swiss INFOsperber website which was published in March 2011. It gives the views of, and includes a verbatim interview with, the distinguished Swiss lawyer Dr Dieter Neupert on the Lockerbie trial and is headlined Der Justiz-Skandal nach dem Lockerbie-Drama (The Judicial Scandal after the Lockerbie Drama). The article is in German, but Google Translate does a reasonably good job of providing an English-language version. Here is one paragraph, translated by me:]

On 31 January 2001 the surprising verdict was delivered: Fhimah was acquitted, while Al Megrahi was found guilty and sentenced to life imprisonment. This was "a miscarriage of justice," says the prominent Scottish jurist Robert Black, in chorus with other legal scholars. The internationally renowned Swiss law professor Stefan Trechsel sees in the Lockerbie case "more than just a miscarriage of justice." It was a "judicial scandal as a result of an opaque intrigue, a real swamp," says Trechsel. (Am 31 Januar 2001 erfolgte das überraschende Urteil: Fhimah wurde freigesprochen, Al Megrahi hingegen für schuldig befunden – und zu lebenslanger Haft verurteilt. Dies sei «ein Fehlurteil», sagt der prominente schottische Jurist Robert Black, im Chor mit anderen Rechtsgelehrten. Der international bekannte Schweizer Rechtsprofessor Stefan Trechsel sieht im Fall Lockerbie «mehr als nur einen Justizirrtum». Es sei ein «Justiz-Skandal als Folge einer undurchsichtigen Intrige, ein richtiger Sumpf», sagt Trechsel.)

Lockerbie Lies & Libya

[This is the headline over an article published yesterday by writer Dean Henderson on his Left Hook website. Although interesting, it places excessive reliance on Juval Aviv’s Interfor Report and the Charles McKee/Monzer al-Kassar theory. Here is one paragraph from the article:]

Both the US and Britain have engaged in a cover-up of the facts. Columnist Jack Anderson reported a telephone conversation between President Bush Sr and British Prime Minister Margaret Thatcher after the crash in which both agreed that the investigation should be limited so as not to harm the nations’ intelligence communities.  Paul Hudson, an Albany, NY attorney who heads the group Families of Pan Am 103/Lockerbie, lost his 16-year-old daughter in the crash.  “It appears that the government either has the facts and is covering them up, or doesn’t know all the facts and doesn’t want to know”, says Hudson.  In April 1990, the group’s British counterpart UK Families-Flight 103 sent angry letters to both Bush and Thatcher which cited “entirely believable published accounts… Both of you have decided to deliberately downplay the evidence and string out the investigation until the case can be dismissed as ancient history.”

Material that would have exonerated Megrahi

What follows is taken from an item published on this blog on this date five years ago:

More Megrahi materials released

A second batch of materials has been released on Abdelbaset Megrahi’s website. These take the form of Grounds of Appeal numbers 3.1 to 3.3 (which would have been argued at the second stage of the – now abandoned – appeal that had been due to start on 2 November 2009) along with two expert reports and the US Department of Justice publication Eyewitness Evidence: A Guide for Law Enforcement.

These materials relate principally to the evidence emanating from Malta.

1. The credibility and reliability of the evidence of “identification” of Megrahi by Maltese shopkeeper, Tony Gauci, is challenged by reference to (a) new evidence about the circumstances in which Gauci’s various “resemblance” statements came to be made, including improper conduct by investigators; (b) failure by the Crown to disclose to the defence statements by Gauci that undermined or contradicted his “identification”; (c) failure to disclose to the defence the existence of, and a police statement by, a witness who may have been present when the purchase of the clothes in Gauci’s shop took place; (d) the expectation of money from US official sources on the part of Tony Gauci and his brother, Paul, and its subsequent payment to them; (e) evidence from two leading psychologists and experts on facial recognition of the unreliability of Gauci’s “identification” of Megrahi.

2. The Lockerbie court’s acceptance of 7 December 1988 as the date of purchase of the clothes and other items in Tony Gauci’s shop is challenged. Even on the material before the court at Zeist, the Scottish Criminal Cases Review Commission had concluded that it was strongly arguable that no reasonable court could have reached the conclusion that this was the date. The materials released today disclose the existence of new evidence that confirms that the date of purchase was not 7 December 1988 (and hence that the purchaser was not Abdelbaset Megrahi).

The importance of this is, of course, that if the court at Zeist had not decided that Mr Megrahi was the purchaser of the clothes in Malta, they would not in law have been entitled to convict him.

The psychology of the USS Vincennes incident

A fascinating long extract from cognitive psychologist Viki McCabe’s recent OUP book Coming to Our Senses: Perceiving Complexity to Avoid Catastrophes has just been published on the UTNE website. The extract is headed Structural Perception in the USS Vincennes Incident and deals with the errors in perception by the captain of the ship that led to the shooting down of Iran Air flight 655, and what caused those errors. The following are brief extracts, but the whole piece deserves to be read:]

At 9:54 am on July 3, 1988, the US Navy cruiser Vincennes mistakenly shot down Iran Air’s Flight 655, killing all 290 people on board. It was the ninth worst incident in aeronautical history and to make it even worse, the decision that led to these deaths was based on a theory of the situation rather than on supporting evidence. (...)

When this incident began, the Vincennes was in Iranian territorial waters in violation of international law and had been mixing it up with several Iranian gunboats. At 9:47 a.m., a distant blip—an airplane lifting off from Bandar Abbas airport—was picked up by the Vincennes’ radar, whose crew responded immediately with a standard Identification Friend or Foe (IFF) query. They received a Mode 3 Commair response, which indentified the plane as a commercial airliner. But during the gunboat fracas circumstances on the Vincennes had become chaotic, and in the confusion the crew ended up providing mixed messages—one speculating that the blip could be an enemy F-14 fighter jet and another insisting the blip was a civilian plane.

“In the cramped and ambiguous combat environment of the Persian Gulf…the captain chose to rely on his own judgment.” He reportedly ran a simulation of the situation in his mind where he tried “to imagine what the pilot was thinking, what the pilot’s intent was.” His belief—that without direct evidence, we can nonetheless deduce what someone whom we do not know and cannot see is planning to do—could qualify as magic thinking. Yet without checking further, the captain developed the theory that the plane was an F-14 fighter and that it was diving directly at the Vincennes.

A simulation is not the situation itself. It is only a theory of the situation. A key point is that no one else actually saw this theorized threat. In fact, a crew member standing right behind the captain later “testified that he never saw indications that the aircraft was descending.” Further, the commander of a nearby frigate, the USS Sides, reported that his radar showed an ascending, not a descending plane. That plane was not only much larger than a fighter jet, but it was also flying in Iranian airspace over Iranian territorial waters on its regularly scheduled twice-weekly flight from Tehran, Iran to Dubai, United Arab Emirates via Bandar Abbas, Iran. The radar-tracking systems of the Sides and the Vincennes both covered that same airspace. When the record of the Vincennes’ tracking system was later reviewed, the information it showed was found to be identical to the one from the USS Sides. How was it that the captains of these two ships reported seeing such different situations? (...)

University of Michigan psychologist Richard Nisbett testified before Congress that both the Vincennes’ captain and his crew suffered from “expectancy bias.” Expectancy bias occurs when people expecting something to happen allow this to distort their view of what is actually happening to match their expectations. Nisbett proposed that because the Vincennes’ crew believed the blip was a hostile plane, they failed to see the ascending Airbus. Instead they apparently imagined a descending enemy fighter. But expectations, like simulations, are similar to theories. All three are mental versions of situations as opposed to perceptions that reveal the situations themselves. In other words, by pointing the finger at the people involved and their possible propensities to see what they expected to “see” instead of what was actually there, Nisbett overlooked the more basic role that substituting a cognitive for a perceptual process—a theory for actual evidence—played in promoting this event. We often forget that our cognitive processes lack windows on the world. They receive their information about what goes on outside ourselves from our perceptual systems. They then translate that complex intelligence into simpler symbolic forms that are often influenced by our preconceptions, theories, beliefs, and general worldview. Without such a theory to set the stage, the captain’s and the crew’s expectancy bias would have no ground upon which to play out.

The Navy compounded the situation by creating false videos to cover up what actually happened. The Iranians were enraged at such a maneuver and accused the United States of a “barbaric massacre” and “vowed to avenge the blood of their martyrs.” There have been unconfirmed rumors that to retaliate, the Ayatollah Khomeini retained a hit man who, on December 21, 1988, blew up Pan Am Flight 103 over Lockerbie, Scotland. On November 16, 2003, the International Court of Justice concluded that the actions of the Vincennes in the Persian Gulf were unlawful. The most important fact to take away from this dismal tale is that the outcome would have been very different if the captain and crew of the Vincennes had simply put their theories aside and paid more attention to the information on the radar screen. That information revealed the true structure of this complex event in which the location of the blip, the commercial airspace on the radar, and the ascending Airbus in the sky were linchpin components.

Redeeming Scotland's reputation for justice and humanity

What follows is taken from an item posted on this blog four years ago on this date:

Doubts remain over Megrahi’s guilt because of payments made to ‘star’ witnesses

[This is the heading over a letter from Dr Jim Swire in today's edition of The Herald. It reads as follows:]

There has been widespread condemnation from the United States, in particular, of Justice Secretary Kenny MacAskill’s decision to release Abdelbaset Ali Mohmed al Megrahi on compassionate grounds.

This condemnation must presuppose that the man was, indeed, guilty of playing a part in the Lockerbie atrocity, yet America is silent concerning the findings of Scotland’s Criminal Cases Review Commission, which indicated that there may have been a miscarriage of justice.

It may be an uncomfortable exercise for the senators, but perhaps they should don their reading glasses and look a lot closer to home. If they will examine the website of their own Rewards for Justice Program in Washington DC, they will find Megrahi’s name among those brought to “justice” by disbursement of RfJ funds.

If they will then look at the website set up on behalf of Megrahi by his defence team, they will find extracts from a policeman’s diary kept during the investigations into Lockerbie on the island of Malta.

These extracts show that the policeman knew that the shopkeeper Tony Gauci, who later claimed haltingly to identify Megrahi in court as the buyer of the clothes, (remains of which were found at the crash site), was increasingly aware of, and excited by, the offer of substantial reward for him if he would give evidence leading to the conviction of Megrahi. All this, of course, long before Mr Gauci actually did give his evidence in court.

If the proprietor of a small Glasgow clothing store, struggling to feed his family, were to be told that if he gave evidence that he had seen a certain individual buy clothes from his shop some years before, he would receive a gift of $2m, would you trust his evidence? The senators might also like to look at the material surrounding a witness known as Giaka, alleged, in the run up to the trial, to be a “star” witness, but who was shown in court to have been on the payroll of the CIA from before Lockerbie and whose evidence was, therefore, seen as suspect by the court. They might also demand a sight of the suite of CIA cables surrounding this man.

Nor need Westminster feel virtuous. Why did the Metropolitan Police investigation into the break-in at Heathrow the night before Lockerbie remain hidden until after the verdict had been reached? The Crown Office has told me it knew nothing about this until after the verdict.

Why did Lady Thatcher write in 1993 in her memoirs, The Downing Street Years, that, following her support for the USAF bombing of Tripoli and Bengazi in 1986 (two years before Lockerbie) “… there was a marked decline in Libyan-sponsored terrorism in succeeding years”.

We see that Scotland, to whom the solemn task of trying the accused was passed, was on the receiving end of external political interference in what should have been a purely criminal case.

If the senators want to know the truth about this appalling atrocity, let them throw their weight behind the need for a process to be set up within Scotland, objectively to review the case against Megrahi.

Only we ourselves, in the absence of Megrahi’s appeal, can redeem our country’s reputation for justice and humanity, and ensure that our own citizens are protected by a wise and independent judicial system.

Inherent improbability of Malta ingestion of Lockerbie bomb

[What follows is an article by Maltese journalist, author and lawyer Joe Mifsud published in September 2000, while the Zeist trial was in progress, on TheLockerbieTrial.com, a website edited by Ian Ferguson and me. In it he points out the inherent improbability of Malta’s being the place of ingestion of the Lockerbie bomb.]

A terrorist, like any other criminal, will do what he can to cover his tracks.  The Maltese origin of clothing in the bomb suitcase does not establish that either the suitcase or the bomb was once in Malta.

The clothing in the bomb suitcase, which was identifiable as having been manufactured in Malta, bore labels to this effect, enabled Royal Armament Research and Development (RARDE) to determine the country of origin as Malta.  So these labels had not been removed by the terrorists.

The Lockerbie investigators established that six items of the clothing and an umbrella, which originated in Malta were new and had been purchased new from the same shop in Malta on the same occasion.

These items of clothing had been purchased from Mary’s House in Sliema, weeks not days before 21st December 1988.  The prosecution is claiming that the clothes were bought on the 7th December, while the defence is suggesting the 23rd November 1988 as the date.

In my opinion the facts and matters set out above are consistent with an attempt by the terrorists to distract the attention of the investigating authorities away from Frankfurt or Heathrow to Malta in the event of the bomb being detected or as in fact happened of the bomb exploding above land and debris from the bomb and the bomb suitcase being recovered.

It is inherently unlikely that terrorists would have tried to place the bomb suitcase on board Air Malta KM 180 on the 21st December 1988 for the following four reasons.

1.  Terrorists do not expose themselves and their plans to any unnecessary risk of detention or of error.

2.  Accordingly the terrorists responsible for the bombing of Pan Am 103 would not have routed the bomb suitcase through Frankfurt and chosen to run the risk of it passing undetected through the security systems of three different airports on two different airlines when Air Malta during that period flew only three flights each week to Frankfurt but ten flights each week to Heathrow.

3.  Further if the bomb consisted of a timer device, terrorists would not have run the unpredictable risk of the passage of the bomb suitcase being delayed in one or more of the following ways:

a)  on the ground at Luqa as a result of mechanical failure, poor weather, security alert, air traffic control or any other reason;

b)  by being diverted away from Frankfurt for any of the reasons at above;

c)  above Frankfurt as a result of air traffic control delays for incoming flights (as in fact happened);

d)  by missing the interline connection at Frankfurt as a result of the bomb suitcase being lost, mishandled or detected in the course of x-ray or baggage reconciliation procedures;

e)  on the ground at Frankfurt for any of the reasons at (a) above;

f)  by being diverted away from Heathrow for any of the reasons at (a) above;

g)  above Heathrow as a result of air traffic control delays for incoming flights;

h)  by missing the interline connection at Heathrow for any of the reasons at (d) above;

i)   on the ground at Heathrow as a result of the connecting transatlantic aircraft being delayed, mechanical failure, poor weather, security alert or any other reason.

4.  Further if the bomb consisted of a barometric pressure device triggered by altitude which itself triggered a timer, terrorists could not have avoided (alternatively would not have risked) the bomb being prematurely triggered on board KM 180 or on board Pan Am 103A from Frankfurt to Heathrow, and then detonating on board either of these flights or on the ground at Frankfurt or at Heathrow.

No terrorist could have predicted in advance the exact altitude at which either flight would have flown or, if such a prediction had been made, no terrorist could have guaranteed that the aircraft would have remained at that altitude and would not have been ordered away from it by air traffic control.  The bomb on board Pan Am 103 exploded approximately 35 minutes after take-off from Heathrow.

It is not clear for me why the Lockerbie investigators choose to blame Malta and Air Malta in this case, when it is so clear that we are the scapegoats for others that lacked security at their airports.

Joe Mifsud is currently following the Lockerbie Trial at Camp Zeist for ONE News and Kullhadd.

The winding path towards a Lockerbie trial

[On this date sixteen years ago a letter from me was published in The Scotsman. It read as follows:]

Your report ("Lockerbie suspects' lawyers sacked", 24 September [1998]) claims the new Libyan defence team had been appointed by the Libyan Government (or by Colonel Gaddafi).  What evidence is there for this?

I met five members of the team in Tripoli last Monday.  The chairman, Kamel Hassan Maghur, said he and his colleagues (who include the present President of the Tripoli Bar Association and the most senior past-President) had been appointed by the two suspects themselves; that their sole concern was with representing the interests of their clients;  that those interests did not necessarily coincide with the wishes or interests of the Libyan Government; and that if the Government sought to interfere in their work or to influence in any way the advice which the lawyers might render to their clients, they would not hesitate to publicise this fact in the international media.

Mr Maghur (who as well as being a former Foreign Minister, is also a retired Libyan Supreme Court judge) said nothing to indicate that his team wished to dispense with the services of Alistair Duff, the Edinburgh solicitor who for many years has represented the two suspects in Scotland: indeed, quite the reverse.

If, as you state, Dr Ibrahim Legwell is claiming (a) still to represent the suspects and (b) that the new team has been foisted on them without their consent, then this conflict should be speedily resolved by direct consultation with the accused themselves.  I was deeply impressed by the professionalism, commitment and independence of the Libyan lawyers. If they do indeed now represent the suspects, I am convinced that their interests are in capable hands.

[This letter appears no longer to feature in The Scotsman’s online archives. It, and other material relating to the change in Megrahi and Fhimah’s Libyan legal team, can be found here.]