Tuesday, 28 April 2015

Critical inferences not sufficiently supported by evidence

[The appeal permitted by the Scottish Criminal Cases Review Commission began at the High Court of Justiciary on this date in 2009, twenty-two months after the SCCRC reported and five years and seven months after Abdelbaset Megrahi’s application to the SCCRC was submitted.

A report in The Herald of 28 April 2009 reads in part:]

A previously-unseen witness statement is expected to undermine the identification of the man convicted of the Lockerbie bombing, the long-awaited appeal which begins today will unveil. (...)

These will include the previously unseen statement of David Wright, a friend of Tony Gauci, the Maltese shop owner whose identification of Megrahi was crucial to the conviction.

Mr Wright allegedly gave a "remarkably" similar description of a sale made at Mr Gauci's shop in Malta to the one used to implicate Megrahi. He gave a statement to English officers in December 1989.

A source said: "The new witness provides an account which is startling in its consistency with Mr Gauci's account of the purchase but adds considerable doubt both to the date of the purchase and the identification by Mr Gauci of Megrahi as the purchaser." (...)

The hearing before the Scottish Court of Criminal Appeal in Edinburgh, is due to sit for four weeks at a time with a month's break in between.

The defence team will question why the original trial excluded the incrimination of a terrorist cell that was operating in Germany shortly before the tragedy and why an inconsistent witness paid financial reward, could have been credible.

They will raise concerns about the trial's exclusion of the defence case to incriminate Abu Talb, who was subsequently convicted in Sweden of terrorist offences, and other members of the Popular Front for the Liberation of Palestine - General Command (PFLP-GC), the terrorist cell that was operating in Germany before the Lockerbie bombing.

They will argue that his right to a fair trial has been breached and that the original case was not proven.

The appeal will also scrutinise the trial court's finding that the suitcase carrying the bomb was put on the plane at Luqa airport in Malta.

The case was referred back to the appeal court in June 2007, following a long investigation by the Scottish Criminal Case Review Commission which concluded it may have been a miscarriage of justice on six separate points.

However, Megrahi, who is suffering from terminal prostate cancer, could be transferred home to Libya under an agreement being rushed through parliament by Jack Straw, the UK Justice Secretary. While he is keen to clear his name in court, there is concern that he may not survive the long appeal process.

[A report later the same day on the BBC News website reads in part:]

Abdelbasset Ali al-Megrahi, 57, who has prostate cancer, was not in court as his second appeal got under way.

However his QC, Maggie Scott, said he could follow proceedings via live video link to Greenock Prison.

She told the Court of Appeal that it remained Megrahi's view that he had suffered a "miscarriage of justice". (...)

Miss Scott said that because of his cancer Megrahi would need to take breaks due to the pain and was set to see doctors later this week for a new course of treatment.

She told the court: "The appellant's position is that there has been a miscarriage of justice.

"The trial court, on the basis of wholly circumstantial evidence, concluded beyond reasonable doubt that the appellant was involved in the commission of this crime.

"Our submission is it was wrong to do so".

She argued that the guilty verdict against Megrahi depended upon four "critical inferences" drawn at his trial at Camp Zeist in the Netherlands.

Miss Scott said these included that Megrahi was the buyer of clothing remnants of which were found in the suitcase containing the bomb and that the purchase was made on 7 December, 1988.

She said it was also inferred that the purchaser knew the purpose for which the clothing was bought and that the suitcase containing the improvised explosive device was "ingested" at Luqa airport in Malta.

The defence counsel argued that they were not sufficiently supported by accepted evidence and relied on defective reasoning.

She said: "In this wholly circumstantial case the critical inferences are not the only reasonable inferences that could have been drawn from the accepted evidence."

She said they were insufficient in law to support the guilty verdict returned against Megrahi.

The first part of his hearing is expected to last four weeks with further stages in the process taking it into next year.

Monday, 27 April 2015

Pan Am 103: Why Did They Die?

[On this date in 1992 Time magazine published a long article by Roy Rowan headlined Pan Am 103: Why Did They Die? The full text can be read here. What follows is a brief excerpt:]

Almost immediately after the Pan Am bombing, which killed the 259 people aboard the plane and 11 more on the ground, the prime suspect was Ahmed Jibril, the roly-poly boss of the Popular Front for the Liberation of Palestine-General Command (PFLP-GC). Two months earlier, West German police had arrested 16 members of his terrorist organization. Seized during the raids was a plastic bomb concealed in a Toshiba cassette player, similar to the one that blew up Flight 103. There was other evidence pointing to Jibril. His patron was Syria. His banker for the attack on the Pan Am plane appeared to be Iran. US intelligence agents even traced a wire transfer of several million dollars to a bank account in Vienna belonging to the PFLP-GC. Iran's motive seemed obvious enough. The previous July, the USS Vincennes had mistakenly shot down an Iranian Airbus over the Persian Gulf, killing all 298 aboard.

Suddenly, last November [1991], the US Justice Department blamed the bombing on two Libyans, Abdel Basset Ali al-Megrahi and Lamen Khalifa Fhimah. The scenario prompted President Bush to remark, ''The Syrians took a bum rap on this.'' It also triggered an outcry from the victims' families, who claimed that pointing the finger at Libya was a political ploy designed to reward Syria for siding with the US in the gulf war and to help win the release of the hostages. Even Vincent Cannistraro, former head of the CIA's investigation of the bombing, told The New York Times it was ''outrageous'' to pin the whole thing on Libyan leader Muammar Gaddafi.

A four-month investigation by Time has disclosed evidence that raises new questions about the case. Among the discoveries:

-- According to an FBI field report from Germany, the suitcase originating in Malta that supposedly contained the bomb may not have been transferred to Pan Am Flight 103 in Frankfurt, as charged in the indictment of the two Libyans. Instead, the bomb-laden bag may have been substituted in Frankfurt for an innocent piece of luggage.

-- The rogue bag may have been placed on board the plane by Jibril's group with the help of Monzer al-Kassar, a Syrian drug dealer who was cooperating with the US's Drug Enforcement Administration in a drug sting operation. Al- Kassar thus may have been playing both sides of the fence.

-- Jibril and his group may have targeted that flight because on board was an intelligence team led by Charles McKee, whose job was to find and rescue the hostages.

Sunday, 26 April 2015

New Lockerbie prosecutor

[This is the headline over a report (behind the paywall) in today’s edition of The Sunday Times. It reads in part:]

Lord advocate will play no part in any further investigation into the bombing, writes Mark Macaskill

Scotland’s lord advocate has signalled for the first time that he will play no role in prosecutions linked to the Lockerbie bombing if a fresh police investigation unearths evidence of criminality by Crown Office staff.

Allegations being examined by Police Scotland include claims that some Crown Office staff concealed or tampered with evidence to ensure Libya took the blame for the 1988 atrocity.

Last week, members of the Scottish parliament’s justice committee declared support for the appointment of an independent prosecutor to ensure public confidence in further investigations and agreed to seek assurances from the lord advocate that he would play no part in fresh prosecutions. Concerns were also raised that Frank Mulholland, the lord advocate, cannot be objective and impartial because he has expressed confidence in the guilt of Abdelbaset Ali al- Megrahi, who was convicted of the bombing, and the integrity of the case against him.

“Frankly, some of the lord advocate’s comments during hearings on the petition were not helpful,” said Christine Grahame, the committee’s convener. “That may in some ways colour one’s feeling of being content that there is — I hesitate to say — an independence of spirit.”

John Finnie, an independent MSP, added: “When the police come to submit their report, they are, as things stand, submitting it to someone who has already prejudged the situation with intemperate remarks.” Finnie said it would be “interesting to hear the lord advocate’s views” on the merits of an independent prosecutor.

On Friday, the Crown Office said moves had already been made internally to appoint an independent prosecutor. “The lord advocate already anticipated this as an issue some time ago and decided it would be improper for him to personally deal with the matter. Arrangements have already been put in place for an independent crown counsel, who has not been involved in the Lockerbie case, to deal with this matter if and when the need arises.”

Senior detectives have been investigating claims by the Justice for Megrahi group — which believes Megrahi, who died in 2012, was framed for bringing down Pan Am flight 103, killing 270 people — that police officers, crown officials and expert witnesses concealed or tampered with evidence.

The group has previously questioned the “objectivity and independence” of Mulholland and former justice secretary Kenny MacAskill. In 2013, the group asked the International Association of Prosecutors to look at how they dealt with allegations against the Crown Office and police which handled the Lockerbie case.

The Scottish Criminal Cases Review Commission is looking at the conviction of Megrahi and has asked the High Court for guidance on whether victims’ families can make an appeal on the Libyan’s behalf. It seeks to determine whether individuals such as Dr Jim Swire, who lost his daughter Flora in the bombing, can be classed as having a “legitimate interest” in pursuing the appeal in the event it refers the case to the High Court for a third appeal.

[RB: It appears that what the Lord Advocate is proposing is that an advocate-depute -- ie a Crown Office prosecutor -- who has had no previous dealings with the Lockerbie case should assume responsibility for assessing the Police Scotland report. This is simply not good enough. Any special prosecutor appointed must be entirely independent of the Crown Office. It is the Crown Office as an institution that has prejudged Justice for Megrahi’s criminality allegations.]

"I've lost faith in the Scottish criminal justice system"

[What follows is an item posted on this blog on this date in 2009:]

New witness casts doubt on Lockerbie bomb conviction


[The following are excerpts from an article under this headline in today's edition of The Independent on Sunday. The full article can be read here.]

A new witness is expected this week to undermine thoroughly the case against the only person to be convicted of the Lockerbie bombing. New testimony will call into question evidence linking the Libyan Abdel Basset Ali al-Megrahi to the bomb that blew up Pan Am Flight 103 in 1988, his lawyers claim. (...)

[Note by RB: In the first session of the appeal, which starts on Tuesday [28 April 2009] and runs until 22 May, there will be no new witnesses, just legal argument. Any new witnesses, if the Appeal Court allows them to be heard -- and the rules about fresh evidence in appeals are very restrictive -- will only feature in later sessions.]

Appeal hearings are due to begin on Tuesday, and Megrahi's lawyers insisted this weekend they will go ahead as planned, despite speculation that he may be returned to Libya under the terms of a controversial prisoner transfer agreement, due to be ratified tomorrow.

"We are turning up next week," said Tony Kelly, his solicitor. "We are seeking that the court upholds his appeal, admit that there has been a miscarriage of justice, and grant him his liberty. Whatever remedies come after that is for after the appeal."

Appeal documents seen by The Independent on Sunday reveal that testimony from a new witness is expected to undermine the evidence of a key prosecution witness, Tony Gauci, a Maltese shopkeeper. His testimony was vital in connecting Megrahi to the bombing at the trial in 2001.

Mr Gauci identified Megrahi as the person who bought the tweed suit, baby sleepsuit and umbrella found among the remnants of the suitcase that contained the bomb on board.

The new witness, not named in the documents, will provide an account the defence claims is "startling in its consistency with Mr Gauci's account of the purchase, but adds considerable doubt to the date the key items were purchased and identification of Megrahi as the purchaser".

All of this may be academic, as 56-year-old Megrahi, who was diagnosed with advanced prostate cancer in October 2008, has been reported as having less than a year to live and the appeal could take two years.

Increasingly, however, it seems likely that the Lockerbie suspect will spend his last days in Libya. This month, officials wrote to the families of victims of the bombing explaining the prisoner transfer programme, interpreted as a tacit agreement that Megrahi may be returned to Libya. Under the terms of the deal, if Megrahi participates in the transfer scheme, he will forfeit his right to appeal.

"If he goes back to Libya, it will be a bitter pill to swallow, as an appeal would reveal the fallacies in the prosecution case," said Dr Jim Swire, whose daughter Flora was killed on Flight 103. Dr Swire is a member of UK Families Flight 103, which wants a public inquiry into the crash. "I've lost faith in the Scottish criminal justice system, but if the appeal is heard, there is not a snowball's chance in hell that the prosecution case will survive."

Saturday, 25 April 2015

The public has a right to know the truth

[What follows is the text of a press release from this date in 2002:]

London, 25 April 2002/P/RE/17666c-is
The President of the International Progress Organization, Professor Hans Koechler, earlier today held a meeting at the House of Commons in London with Mr Tam Dalyell, MP, “Father of the House” (the longest-serving member of the British Parliament), and Mr Ross Cranston, MP, former Solicitor-General of the United Kingdom. He briefed the members of the British Parliament on his report on the Lockerbie appeal proceedings which he had submitted earlier last month to the Presidency of the United Nations Security Council, to United Nations Secretary-General Kofi Annan and to the UN High Commissioner for Human Rights, Mary Robinson.

In his capacity as international observer of the Lockerbie trial, appointed by the UN Secretary-General, Professor Koechler discussed with Mr Tam Dalyell basic issues of the fairness of the Lockerbie trial and appeal proceedings. In a statement made at the adjournment (Easter) session of the House of Commons on 26 March 2002, Mr Dalyell had raised serious doubts about the handling of the Lockerbie case by Scottish judicial authorities. In his report on the Lockerbie appeal proceedings, Prof Koechler had expressed reservations about the fairness of the trial and had further explained his position that the proceedings were not in conformity with the requirements of the European Human Rights Convention.

Prof Koechler agreed with Mr Dalyell that the Lockerbie case should be further investigated and that the public has a right to know the truth. He reiterated his suggestion that the British Parliament should undertake a comprehensive investigation into the Lockerbie affair – particularly in regard to the detrimental role played by international power politics. Prof Koechler stated that the Lockerbie case is of exemplary nature in regard to the future development of international criminal justice and that the independence of the judiciary has been at stake in the highly politicized context of the trial. He explained that, for this reason, he considers a comprehensive public inquiry into the background of the Lockerbie case and into its handling by the Scottish judicial authorities of utmost importance.

[RB: It was exactly two years earlier, on 25 April 2000, that Professor Koechler was appointed by Kofi Annan as one of the UN observers.]

Friday, 24 April 2015

Death of Allan Francovich in 1997

[What follows is the text of a report in The Herald on this date in 1997:]

US film-maker Allan Francovich, whose controversial documentary challenged the official British and American view that the Lockerbie bombing was solely the work of two Libyan agents, has died. A friend said Mr Francovich collapsed on April 17 at Houston airport, Texas.

He was pronounced dead at hospital where the cause was given as a heart attack. Mr David Ben-Aryeah, a friend, said Mr Francovich would be cremated in San Antonio, and that his ashes would later be brought to Skye for a ''service of celebration''.

Mr Francovich, who was in his early 50s [RB: He was 56], had written a script while on Skye and had also visited the island with bereaved Lockerbie parent, Dr Jim Swire, while making the Lockerbie documentary The Maltese Double Cross. Mr Ben-Aryeah said: ''While he was there he came to love the island, its tranquillity, its scenery and its people.''

The American made several other controversial documentaries, mostly concerning the work of the Central Intelligence Agency.

The Maltese Double Cross, which was shown to MPs in the Commons before being screened publicly in 1995, challenged the official US and British version of how a bomb brought down the New York-bound Pan Am Flight 103 over Lockerbie on December 21, 1988.

Last night Linlithgow Labour MP Tam Dalyell, who collaborated with Mr Francovich in making the documentary, said he was ''very upset'' by news of his death. The MP described him as ''one of the most persistent seekers-of-truth'' he had ever met, ''an exceedingly brave man''.

Dr Swire, whose daughter died in the disaster, said he would be ''very much missed'' by those who considered that the truth on the Lockerbie disaster had yet to be told.

The 90-minute documentary, directed by Mr Francovich, claimed a huge cover-up had taken place. The film maintained that Iran and Syria plotted to bring down the aircraft as revenge for the US shooting down an Iranian Airbus months before the Lockerbie tragedy. It argued that the authorities knew the plane was going to be bombed, but did nothing to prevent it for fear of exposing a US-sponsored drug-smuggling operation.

Scotland's top law officer at the time, the Lord Advocate, Lord Rodger of Earlsferry, criticised the screening by Channel 4. He said he deprecated all attempts to give a version of the atrocity ''from whatever angle'' while criminal proceedings were pending.

However, relatives of the 270 people who died welcomed the showing of the documentary saying people should be allowed ''to make up their own minds''.

Mr Dalyell said: ''It was my privilege to be Allan Francovich's collaborator in making the film, The Maltese Double Cross, which I believe exposed the truth that the Libyans were not responsible for the Lockerbie crime. ''I could not criticise the American and British governments more strongly for their refusal to address properly the explanations of Lockerbie.''

Dr Swire said: ''Speaking personally we view the loss of Allan as the loss of a close friend whose humour and determination was much appreciated and will be greatly missed.

[RB: Tam Dalyell’s obituary of Allan Francovich in The Independent can be read here.]

Thursday, 23 April 2015

Official Report of consideration of Megrahi petition

[What follows is the text of the Official Report (Hansard) of the Scottish Parliament Justice Committee’s consideration of Justice for Megrahi’s petition on Tuesday, 21 April 2015:]

The Convener (Christine Grahame, Midlothian South, Tweeddale and Lauderdale, SNP): PE1370 calls for an independent inquiry into the Megrahi conviction. We have received an update from Justice for Megrahi on its latest meeting with Police Scotland—the update is available at annex B of paper J/S4/15/12/1. Justice for Megrahi asks us to consider the principle of appointing an independent prosecutor to consider the forthcoming Police Scotland report. Separately, the Scottish Criminal Cases Review Commission has asked the High Court for a ruling on the legal status of the victims’ relatives, to enable it to decide whether they can pursue an appeal on Megrahi’s behalf. A date for a full hearing is yet to be fixed. Do members have any comments on those developments?

I declare that I am a member of the Justice for Megrahi campaign.

John Finnie (Highlands and Islands) (Ind): The request is entirely reasonable, and I would hope that the committee would throw its weight behind it. There is an independent Queen’s counsel who is assisting with the on-going police investigation. The reports that we have received are very encouraging. Certainly, Justice for Megrahi seems to have “full confidence” in Police Scotland, which is welcome. Police Scotland has said that it will act as an honest broker and thoroughly investigate the incidents that have been alleged in good faith. Of course, it is what happens thereafter that is the challenge. However, I suggest that there is precedent in the system, given that an independent QC is assisting with the police inquiry.

Roderick Campbell (North East Fife) (SNP): I have a couple of points. On the procedural hearings to determine whether a reference to the Scottish Criminal Cases Review Commission can go ahead, we have to wait and watch. That is a very good reason for keeping the petition open. On an independent prosecutor, we should not take a decision without specifically referring the matter to the Crown Office and asking for its comments.

The Convener: My concern is whether it would be competent for the committee to appoint an independent prosecutor. I concur with Roddy Campbell on asking the Crown Office for its comments. I see that John Finnie wants to come back in. I am just giving my views—I am not summing up. I also suggest that we ask the Government for its views on competence in relation to the appointment of an independent prosecutor.

John Finnie: For the avoidance of doubt, I was not saying that that is in the committee’s gift; I was saying that we should lend our support to Justice for Megrahi’s calls for such an appointment to be made. Clearly, there will be a role for the statutory prosecuting office, which is the Crown Office and Procurator Fiscal Service. Roddy Campbell’s point about the SCCRC is interesting, but it is a separate issue altogether.

The Convener: It is indeed. That is not a problem for us because, with regard to that part of the process, we must wait and see what happens at any full hearing The issue of the roles of the Crown Office and the police throughout is a separate matter.

I take the view that we need to find out the position on who would investigate the Crown Office. How would one go about that? I do not know whether that has ever happened. I am looking around for guidance.

John Finnie: Should we not assume that that is part of the on-going police inquiry? In some respects, the issue is more that, when the police come to submit their report, they are, as things stand, submitting it to someone who has already prejudged the situation with intemperate remarks.

The Convener: Does anyone else want in? I see that Roderick Campbell is shaking his head.

Roderick Campbell: No—I just think that it is premature.

The Convener: That is because we are waiting for the police report.
Do members want me to write to find out whether, in principle, an independent prosecutor could be considered?

John Finnie: It would be interesting to hear the Lord Advocate’s views on that.

The Convener: Okay.

John Finnie: It is clear that, given his prior involvement in the case, he will not be able to have any direct hands-on role anyway in any report that is received.

The Convener: Yes. Frankly, some of the Lord Advocate’s comments during hearings on the petition were not helpful. That may in some ways colour one’s feeling of being content that there is—I hesitate to say—an independence of spirit. What are we going to do? Will we continue the petition? Who will we write to? I seek members’ guidance.

Margaret Mitchell (Central Scotland) (Con): Is the key issue not that we should wait until the Scottish Criminal Cases Review Commission has reported on the victims’ status?

The Convener: Well, there are two issues. The issue that you raise is not a problem—it is fine; we will just wait for the full hearing. We will keep the petition open for that reason. The question is whether we should take any action in relation to an independent prosecutor.

John Finnie: I suggest that we write to the Lord Advocate to ask for his views on that question. Alternatively, we could ask how, given his prior personal involvement, he would envisage being able to take forward a report that was presented to the Crown Office and Procurator Fiscal Service by Police Scotland.

The Convener: Do you want us to refer to some of the comments that have already been made by the Crown Office? Do you want to be as pointed as that?

Roderick Campbell: I would prefer the request to be neutral. The committee can relay the petitioners’ position and comments, but without expressing a view on the matter.

The Convener: What we have already heard and said is on the record. We will write a fairly neutral letter. Are members agreed?

Members indicated agreement.

The Convener: Thank you. We will keep the petition open.

"Exceptionally meritorious conduct" by USS Vincennes officers

[What follows is the text of a report published in The Washington Post twenty-five years ago today:]
The Navy has awarded special commendation medals for "meritorious service" to two of the top officers who were serving on the USS Vincennes at the time the cruiser shot down an Iranian airliner over the Persian Gulf with 290 people aboard.
The citations for the special commendations to former Vincennes skipper Capt Will Rogers III and Lt Cmdr Scott E Lustig, who was the ship's weapons and combat systems officer, do not mention the downing of the aircraft on July 3, 1988, an error that took the lives of the plane's passengers and crew.
The medals were awarded to the two men early last year.
Instead, the Navy citation to Rogers states, "The president of the United States takes pleasure in presenting the Legion of Merit" -- the armed forces' second highest peacetime award -- "for exceptionally meritorious conduct in the performance of outstanding service as commanding officer ... from April 1987 to May 1989."
After describing the Vincennes' skirmish with seven Iranian boats minutes before it shot down the civilian aircraft, the medal citation states, "Captain Rogers's dynamic leadership, logical judgment and unexcelled devotion to duty reflected great credit upon himself and were in keeping with the highest traditions of the US Naval Service."
Lustig, the Vincennes's weapons officer on that day, was given two Navy commendation medals -- one for his four years of service on the Aegis cruiser, the other for his role in the surface skirmish.
The Navy praised Lustig for "heroic achievement" in connection with firing on the seven Iranian boats and lauded his "meritorious service" as weapons and combat systems officer from 1984-88.
Navy officials said this week that while Rogers and some of his officers made mistakes in connection with the shooting, the commendations were awarded for their "contributions to the USS Vincennes over their entire tour on board."
The Navy, in its official report on the jet's downing, did not discipline any of the officers involved but blamed the shooting on a series of human errors that snowballed in the chaos of the ship's Combat Information Center, where Rogers and Lustig were positioned.
"Mistakes were made on board Vincennes," retired admiral William J Crowe Jr, then chairman of the Joint Chiefs of Staff, wrote in his review of the incident, adding, "This regrettable accident, a byproduct of the Iran-Iraq war, was not the result of culpable conduct aboard Vincennes."
But the skipper of another ship that was on the scene of the July 3 incident wrote in the September 1989 issue of the US Naval Institute Proceedings that the Vincennes had gained a reputation for being an overly aggressive "robo-cruiser" and "likely provoked the sea battle with the Iranian gunboats that preceded the shootdown."
"Having watched the performance of the Vincennes for a month before the incident, my impression was clearly that an atmosphere of restraint was not her long suit," wrote Cmdr David R Carlson, skipper of the frigate USS Sides, which monitored the jet's downing. Carlson added, "My guess was that the crew of the Vincennes felt a need to prove the viability of Aegis (the highly sophisticated anti-aircraft system on the cruiser) in the Persian Gulf, and that they hankered for an opportunity to show their stuff."
Both decorated men remain in the Navy: Rogers is commanding officer of a Navy unit that trains senior officers in military tactics; Lustig is executive officer of another Navy cruiser, the Navy said.
[RB: Less than six months after the shooting down of Iran Air flight 655 with the loss of 290 lives, Pan Am flight 103 was destroyed over Lockerbie with the loss of 270.]