Questioning the probity of the Megrahi verdict

What follows is an item posted on this blog on 28 December 2012:

“I pray we may all with honesty seek and learn the truth”

[What follows is the text of a letter to The Times by Dr Jim Swire.  A week after it was sent, it has not been published and so I am taking the liberty of posting it here:]

I note your article from Mr Linklater concerning the security of the verdict reached against Mr Megrahi, regarding the murder of my daughter Flora and 269 others in the Lockerbie air disaster. [RB: Magnus Linklater is appointed CBE in today’s New Year Honours List.]

A brilliant medical student at Nottingham, Flora, who was only on her way to see her US boyfriend over Christmas, had just been accepted to continue her medical studies at Cambridge.

I have not enjoyed being accused by Mr Mullholland's Crown Office, as a member of the Justice for Megrahi (JFM) group's committee, of deliberate lying over this case.

Nor do I admire the tastelessness of your newspaper in publishing this contentious article on the very day of the 24th anniversary of my innocent daughter Flora's brutal murder. I am far from alone among UK relatives in questioning the probity of the management of this terrible case.

There are at present allegations of criminality lodged by the committee of JFM against members of the Crown Office and the Scottish police force over the conduct of the Lockerbie investigation and trial.

I will not stoop to making allegations now in your pages against the Crown Office, the Lord Advocate, nor indeed Mr Linklater until the allegations have been objectively investigated.

Your readers should remember that Benedict Birnberg, Gareth Peirce, Michael Mansfield QC, David Wolchover, Len Murray, Ian Hamilton QC, Jock Thomson QC, John Scott QC and Emeritus Professor (of Scots law) Robert Black QC are among many other lawyers who question the probity of this verdict.

However, in the spirit of the season, I offer all who contributed to this article a happy 2013, in which I pray we may all with honesty seek and learn the truth. That is actually all that we the relatives are asking for.  

[The article in today’s edition of The Times (behind the paywall) in which Mr Linklater’s honour is reported, contains the following paragraph:]

Mr Linklater remains one of most respected figures in Scottish journalism, with the skill and compassion to report sensitively on the tragedy of Lockerbie — “a story that has stayed with me ever since” — as well as the humour to deliver an agonised column about the iniquities of speed cameras.

The facts persistently taint the purity of the Crown's belief system

[Where was the Crown’s Lockerbie fight is the heading over a letter from Thomas Crooks published in today’s edition of The Scotsman.  It reads as follows:]

During a speech in America on the 26th anniversary of the Lockerbie bombing, Scotland’s Lord Advocate opined: “During the 26 year-long inquiry not one Crown Office investigator or prosecutor has raised a concern about the evidence in the case.”

So there we have it! No ifs, no buts, no doubts about the “merits” of Abdelbaset Ali Mohmed al-Megrahi’s conviction.

The unanimous opinions of Crown Office lawyers are more than good enough to flay the “conspiracy theorists”. Deluded by a pile of doubts about the conviction, (based on an abundance of objective evidence), critics of the verdict could have avoided all that angst if they had simply phoned the Crown Office for reassurance.

The Scottish Criminal Cases Review Commission (SCCRC), identified six serious doubts about the merits of the conviction but faced with the infallibility complex that suffuses the Crown Office, the reviewers clearly engaged in a pointless exercise.

The Lord Advocate, in his address to the memorial service, said his ongoing investigation “remains on the evidence and not on speculation and supposition”. Implicitly, the conclusions of the SCCRC are based on “speculation and supposition” – and are therefore worthless.

Clearly, the Crown Office and the Lord Advocate have an encyclopaedic capacity for never knowingly doubting the merits of their prosecutions or the convictions deriving from those prosecutions.

The facts, however, persistently taint the purity of their belief system.

Tony Gauci, the Crown’s star witness, long before he entered the witness box, was acutely aware of the Reward for Justice programme controlled by the US Department of Justice. He knew that no reward would be forthcoming if his “evidence” served the interests of justice by helping to exonerate Megrahi. The Reward for Justice Programme was arguably codespeak for “convict a Libyan, blame Gadafi for the bombing and thereby satisfy America’s geopolitical machinations”.

Gauci was psychologically primed, thanks to the prospect of a reward (he subsequently received $2 million) to give the “quality” of evidence that would secure a conviction. Those facts alone shred Gucci’s credibility, they destroy the basis of Megrahi’s conviction and therefore reflect a gross miscarriage of justice.

The Lord Advocate concluded his memorial address by assuring his audience that “the Crown will never give up the fight to secure justice for the families of those who died”.

Arguably, the Crown gave up that fight the day the state adopted Gauci as the star witness.

Forensic folly and cultural collusion

[The following are two letters published in today’s edition of The Scotsman:]

Dr John Cameron (Letters, 24 December) is right to observe similarities between the Lockerbie and Shirley McKie investigations. An in-depth analysis of both cases reveals, however, that they had more than Colin Boyd in common.

Not only were a number of Crown Office, police and forensic witnesses involved in both cases but there was particular interest shown by foreign governments through agencies like the FBI.

More importantly, a common culture appeared to bind these people and agencies together.

Their “conviction at all costs” mentality, regardless of the contrary evidence staring them in the face, brooked no opposition and of course erroneous forensic evidence, which still bears the mantle of infallibility, was extremely helpful to the cause.

It’s not for me to judge their motivation but it was this realisation that led to my joining Justice for Megrahi, the organisation currently locking horns with the Lord Advocate in the face of his latest outrageous outbursts in relation to past and ongoing Lockerbie enquiries.

“Forensic folly” indeed but also “cultural collusion”.

Through this continuing rejection of the reality staring him in the face the Lord Advocate, Scotland’s independent prosecutor in the public interest and a member of the Scottish Government, has severely compromised his constitutional position of independence and neutrality.

Iain A J McKie

Forensic evidence is not perfect but is the best form of evidence we currently have. All other forms of evidence have their risks, including confessions, witnesses and even film or digital recording.

Abdelbaset Ali Mohmed al-Megrahi was released on the basis of medical evidence that he would die within three months.

When he failed to die for 30 months we did not conclude that all medicine was therefore wrong. Dr Cameron criticises forensic evidence whilst citing narrative evidence.

Forensic evidence, being scientifically based, usually fails in human interpretation of the science rather than the science itself. We need to improve the scientific basis of forensic evidence rather than abandon it. Even DNA evidence is subject to interpretation and hence contains a risk of error.

Neil Sinclair

The Scottish injustice

[This is the headline over an article by Neil Berry published today in the Kuwait newspaper the Khaleej Times:]

Megrahi apparently suffered a monstrous miscarriage of justice

Scotland’s former first minister, Alex Salmond, has often voiced contempt for the manner in which former British prime minister, Tony Blair, led Britain into war in Iraq on the basis of manipulated intelligence and secretive deliberations. Salmond’s boast is that, in contrast to the Machiavellian political establishment in London, his nation’s political culture stands for openness and democratic accountability.

But would Scottish public life have become a model of transparency if Scotland had voted to quit the United Kingdom in this year’s referendum on independence? Does candour really come more readily to Scotland’s devolved government than it does to the UK government in London? Signs are not wanting that Scottish power is capable of being every bit as opaque and arbitrary as power in the British capital.

This December Scotland’s chief law officer, Lord Advocate Frank Mulholland, has brushed aside the multiple reasons for suspecting that the Scottish judiciary wrongfully convicted the late Libyan, Abdelbaset Al Megrahi of blowing up Pan Am Flight 103 over the Scottish town of Lockerbie on December 21, 1988, and killing 270 passengers, many of them Americans. There is, he bullishly declared, no evidence to cast doubt on Megrahi’s conviction.

In truth, there is an abundance of such evidence. The Scottish writers John Ashton and Morag Kerr have between them written three books that furnish solid grounds for believing that Megrahi suffered a monstrous miscarriage of justice when in 2001 he was sentenced to life imprisonment by a Scottish court convened in the Netherlands.

Ashton has demolished the credibility of the key prosecution witness, the Malta shopkeeper, Tony Gauci, who supposedly sold clothes to Megrahi that were wrapped round the bomb alleged to have been loaded onto a feeder flight from Malta to London via Frankfurt. Considered by one of the very trial judges to be in doubtful possession of his faculties, Gauci gave details of Megrahi’s age and appearance that were wildly at variance with the facts. Moreover, it was to transpire that Gauci and his brother Paul were paid $3 million by the US Department of Justice – an item of vital information damagingly withheld from Megrahi’s defence.

On top of all this, it has emerged that the bomb timer found at Lockerbie did not belong the batch of such devices sold to Libya by a Swiss firm and held by the prosecution to confirm Libyan culpability. There are also grounds for scepticism about whether the suitcase containing the Lockerbie bomb originated in Malta.

In a compelling review of the evidence, Morag Kerr concluded that it was planted at London Heathrow where, not long before Pan Am 103 took off, there was a breach of airport security that has never yet been explained.

What above all makes Frank Mulholland’s re-affirmation of Megrahi’s guilt ring hollow is that in 2007, five years before the Libyan’s death, Scotland’s Criminal Cases Review Commission accepted that the issue deserved to be re-visited. Megrahi’s sentence was ready to be appealed when in 2009 he was diagnosed with terminal cancer and allowed, on compassionate grounds, to go home to his family in Libya. Almost certainly the verdict would have been that the case against him came nowhere near to satisfying the fundamental requirement of Western justice that guilt be established ‘beyond reasonable doubt’.

It is far from being of mere incidental interest that Frank Mulholland formally re-affirmed Scottish belief in Megrahi’s guilt while attending a 26th Lockerbie anniversary memorial service in Washington. The suspicion is hard to escape that the enduring official resistance to re-opening the Megrahi case is bound up with fear in Scottish high places of re-kindling the venomous US outrage that was ignited in 2009 when Scotland freed a ‘terrorist’ who looms large in American demonology.

Mulholland assured his American audience that Scottish justice has ‘no sell-by date’ and that despite current turbulence in Libya the Scottish authorities would continue to pursue Megrahi’s accomplices. Yet what could be more grotesque than for a senior law officer to speak of justice in the language of the supermarket! Mulholland’s choice of expression is all the more crass considering that in this instance, far from having no sell-by date, Scottish justice appears to have been sold with indecent haste.

Forensic folly

[This is the heading over two letters published in today’s edition of The Scotsman:]

Few forensic-based cases have caused greater concern than the Lockerbie trial, with the review commission deeply concerned by the prosecution’s tactics of disinformation (your report, 23 December).

The lead prosecutor, Colin Boyd, was also involved in an earlier forensic disaster when the fingerprint evidence against Detective Constable Shirley McKie was thrown out and the she was acquitted.

One of the foremost critics of the trial is the famous criminal lawyer Michael Mansfield, who has long warned against over-reliance on forensic evidence to secure convictions.

He said: “Some of the worst miscarriages of justice in British legal history have come from cases in which the forensic science was later shown to have been grossly misleading.”

The idea of a long-timer bomb starting at Malta in a piece of
unaccompanied baggage before finding its way on to Pan Am 103 is beyond absurdity.

There is no proof it entered at Malta – in fact, Air Malta won a libel action establishing it did not – and the evidence of a 
Heathrow-loaded barometric device is overwhelming.

(Dr) John Cameron

I do not understand the 
Megrahi deniers (Letters, 23 December). If Abdelbaset Ali Mohmed al-Megrahi was not responsible for Lockerbie that means that after 26 years the Scottish Government has failed to hold a single person accountable for the murder of 270 
people in Scotland’s worst terrorist atrocity.

That surely is a definition of “miscarriage of justice”.

This is compounded by the fact that it prematurely released the person it thought was 
responsible and then sought to spin the news of his release by writing to Nelson Mandela et al to encourage them to endorse the decision.

Miscarriage of justice compounded.

Neil Sinclair

The development of Tony Gauci’s statements

[Regarding the Lockerbie case, Frank Mulholland QC, the Lord Advocate, has recently stated: “During the 26-year-long inquiry not one Crown Office investigator or prosecutor has raised a concern about the evidence in this case.”  If this is so, then it is a truly shocking indictment of the Crown Office. The following section from Dr Kevin Bannon‘s PhD thesis, reproduced with his kind permission, demonstrates how grave the concerns should be about just one particular chapter of the evidence:]

The development of Tony Gauci’s statements from his first police interviews in September 1989 through to his testimony in court, reveal his recollections systematically developing in favour of the Crown narrative, in increasing contradiction of all his freshest recollections. This is transparently evident in the following compendium in which each subject of Gauci’s testimony in bold type is followed by actual or accepted facts summarised in italics, below which the essential statements are put chronologically:

1. Stature of the Purchaser:

The height and build of the purchaser. Al-Megrahi was 5’7” tall, average build.

1 September1989: ‘Six feet or more in height’ big chest, large head, well built.

26 September 1989: ‘around six feet or just under that in height’ and ‘broad built’.

11 July 2000 (Camp Zeist): ‘..below six feet’. ‘He wasn’t small. He was a normal stature’.

2. Purchase of clothing:

Slalom shirts. 2 Slalom shirts found at Lockerbie, one grey and one blue & white.

1 September 1989: No mention in statements of any shirts sold.

30 January 1990: ‘That man didn’t buy any shirts for sure’…‘I am sure I did not sell him a shirt’.

10 September 1990: I now remember that the man who bought the clothing also bought a beige ‘Slalom’ shirt and a blue and white striped shirt.’

11 July 2000 (Camp Zeist: asked ‘How many shirts did the Libyan buy?’): ‘Two’ shirts ‘Slalom, something Slalom’ one ‘blue checked’ and the other ‘greenish’. ‘It’s greenish and greyish. It’s more greyish…’

Pyjamas. 1 pair, striped, found at Lockerbie.

1 September 1989: ‘3 pair pyjamas’ (un-described).

11 July 2000: Did he buy any pairs of pyjamas? ‘Yes he did. He bought two pairs, striped’.

Cardigans. Fragments of 2 Cardigans found, one black and one brown.

1 September 1989: 1 cardigan (listed). Black and red colour.

11 July 2000: ‘..two pullovers.’ ‘They were cardigans.’ ‘One was blue, the other was a brownish colour’.

‘Babygro’ romper suit. Crash-site find had lamb’s head motif.

1 September 1989: Gauci said that the Babygro had a sheep’s face on the front.

13 September 1989: Gauci reiterated that the Babygro had a sheep’s head, even when shown the control sample with a lamb’s head, declaring that the sheep’s head design had been discontinued since he received it. Police subsequently established that the Babygro manufacturer had never produced a sheep’s head design.

4 October 1989: Gauci initially declared he was not sure about the sheep’s head design. Then said he was "fairly certain" that the Babygro sold to the purchaser had a lamb motif.

Payments for items sold. Gauci’s uncorroborated figures (in Maltese Pounds):

1 September 1989: Sale was £76.50, purchaser paid in £10 notes and received £4 change. Gauci later said the purchaser paid a total of £56 in cash.

19 September 1989: Second cardigan recollection; raises the sale to £88.

10 September 1990: Sale of 2 shirts raises Gauci’s recollected bill to £97 or £98.50.

11 July 2000: Purchaser gave him £80 for a total bill of £77.

3. Time and circumstances of purchase:

Rain. Meteorological evidence: 90% probability of no rain in Sliema on December 7.

1 September1989: ‘..it was raining’.

21 February 1990: ‘it had almost stopped raining, and it was just drops coming down’.

10 September 1990: ‘very little rain on the ground, no running water, just damp’.

11 July 2000, (Camp Zeist): ‘..it started dripping. Not very -- it was not raining heavily. It was simply -- it was simply dripping’.

11 July 2000: ‘It wasn't raining. It wasn't raining. It was just drizzling’.

Christmas lights/decorations. Decorations up and switched on 6 December 1988.

19 September 1989: ‘The decorations were not up when the man bought the clothes’.

10 September 1990: ‘There were no Christmas decorations up, as I have already said...’

11 July, 2000 (Camp Zeist): ‘..yes, there were Christmas lights. They were on already. I’m sure.

Date of purchase. Only December 7 fitted with al-Megrahi’s movements.

19 September 1989: ‘…I believe it…was at the end of November’.

8 October 1999 Precognition of Tony Gauci: ‘I remember it was the 29th of the month. I think it was November’. (Gauci recalled the date because he’d had a row with his girlfriend on that day).

11 July 2000 (Camp Zeist) : It must have been about a fortnight before Christmas. I don’t know whether it was a week or two weeks before Christmas’.

Second visit of Libyan customer. Al-Megrahi was not in Malta on September, 25 1989.

26 Sept 1989: Gauci said that the Libyan customer had returned to his shop the previous day (September 25) to buy dresses for a four-year-old child.

2 October 1989: (DCI Bell’s report of statement) Gauci said he was only 50% sure that the same Libyan had returned to the shop.

4 November 1991: Gauci said that the man who bought children’s dresses ‘really looked like’ [the purchaser]. Gauci seemed confused about the date of the visit.

18 March 1999 / 25 August 1999 (Precognition of Tony Gauci). Noted in DCI Bell’s words: ‘the man who bought the dresses looked like the purchaser but it was not the same person’.

Even minor details of Gauci’s testimony, including the collar sizes of shirts and the size of a jacket sold to the Libyan, drift consistently in favour of the Crown narrative.

It was not a secret that well before the Camp Zeist identification parade, Gauci had been exposed to newspaper articles featuring pictures of al-Megrahi including speculation about him as a suspect. In later SCCRC interviews, Gauci firstly admitted seeing the articles but could not recall specifics about them. Later he said that he could not recall seeing the articles at all, and later still he confirmed that he had not seen them - a transformation in the same, stepped fashion as most of his ‘recollections’ which at the very least, confirm his ineptitude as a witness.

Therefore, it is not merely the case (as has often been stated) that Gauci’s evidence was contradictory, but that in every aspect, it changed in favour of the Crown narrative, in some instances quite drastically. Gauci’s original, freshest recollections about the appearance of the Libyan purchaser and the time of his visit, would have, and should have, categorically eliminated al-Megrahi from suspicion.

Gauci’s testimony, the centrepiece of the case against al-Megrahi and, by implication, the principal Libyan connection to the crime, simply has no integrity whatsoever - nevertheless he was given a substantial financial reward for his latter evidence. These discrepancies render the entire case against al-Megrahi invalid. Of course this means that the considerable body of Camp Zeist testimony implicating al-Megrahi, such as the testimony of Majid Giaka, is false.

Megrahi: an unbreakable alibi

[Two letters about the Lockerbie case have been published in the press today. The first is from Dr Morag Kerr in The National and the second from Ruth Marr in The Herald:]

1.  Every article about Lockerbie seems to home in on one specific point, that of the contentious “timer fragment” which led the original police investigation to Libya back in 1990. Kathleen Nutt’s piece in your Monday issue is no exception.

The timer fragment is interesting, indeed fascinating, for many complex reasons.  Nevertheless the perennial implication that it is essential for this item to be a fabrication or a plant in order for Abdelbaset al-Megrahi’s conviction to be shown to be a miscarriage of justice is unfounded.

The Crown alleged that the bomb that destroyed Pan Am 103 was smuggled into the airline baggage system on the morning of 21st December 1988, at Luqa airport, Malta.  Megrahi was at Luqa airport that morning, caching a flight to Tripoli.  This was and remains the main substance of the case against him, together with the allegation that he was the mysterious customer who bought some of the clothes packed in the suitcase with the bomb.

The SCCRC’s 2007 report effectively destroyed the contention that Megrahi was the clothes purchaser.  More recently, long-held suspicions that the scene of the crime was not Malta but London have been shown to be correct.

In my recent book Adequately Explained by Stupidity? (Matador Books, 2013), I present a detailed analysis of the blast-damaged luggage and its arrangement within the baggage container which shows quite conclusively that the bomb was in a suitcase seen at Heathrow airport fully an hour before the connecting flight alleged to be carrying the “suitcase from Malta” arrived.  The Lockerbie bombing is a crime that occurred in London in late afternoon, at a time when Megrahi was verifiably in Tripoli.

The book is included as part of the 2014 submission to the SCCRC referred to in your article, and indeed it is believed that this is the first time a published book has been used in this way in an appeal application under Scots law.  The analysis it contains doesn’t merely cast doubt on the case against Megrahi, it provides him with an unbreakable alibi.

Maybe the timer fragment was planted, maybe it fell from the sky. Either way, Megrahi was a thousand miles away when the lethal suitcase was placed in the unattended baggage container.

2.  When Abdelbaset Ali Mohmed al Megrahi was first convicted of the Lockerbie bombing, I thought it strange that his co-accused and fellow Libyan agent should have been acquitted.

Surely agents worked in pairs?

That proved to be not the only question surrounding the Lockerbie tragedy which continues to haunt a great many people who believe that Megrahi's conviction was at the very least, unsafe. Indeed, on the evidence which was presented at his trial, it seems impossible to believe that a jury would have delivered a guilty verdict against him. Given the fact that the Scottish Criminal Cases Review Commission found six grounds which point to the possibility of Megrahi suffering a miscarriage of justice, it is incredible that the Crown Office should now declare that a review of the case "confirmed beyond doubt'" that Megrahi was the Lockerbie bomber ("Advice is sought on Lockerbie bomber conviction", The Herald, December 23).

I have grave doubts regarding Megrahi's conviction and I need to know the truth. More importantly, all those who continue to suffer the effects of the atrocity, especially the bereraved families, including the Megrahi family, and the town of Lockerbie, need to know. If there has been a failure in the Scottish Justice system, we all need to know.

A full public inquiry must be held to provide answers to the questions which will not go away, because no matter how inconvenient the truth may be, the victims and their families deserve nothing less.