Pan Am 103: Libya and a case unclosed

[This is the headline over an article by Professor Paul Rogers published on the Open Democracy website on this date in 2012. The following are excerpts:]

The death on 20 May 2012 of Abdelbaset Ali Mohmed al-Megrahi, the only person convicted of the bombing of a passenger airplane over the Scottish town of Lockerbie on 21 December 1988, has been followed by calls for a renewed enquiry into the circumstances of and responsibility of the tragedy. The focus of these calls is thus very different from the controversy over al-Megrahi's release from custody by the Scottish government in August 2009 on medical grounds, for it relates to the murders of the 259 people on Pan Am 103 and the eleven townspeople who died in Lockerbie itself. (...)

The doubts over the case revolve around several areas, but at the outset it is worth bearing in mind two things:

* Abdelbaset Ali Mohmed al-Megrahi was one of two people tried for the attack; the other, Lamen Khalifa Fhimah, was cleared, released and returned to Libya

* Al-Megrahi's case was itself up for consideration by the Scottish Criminal Cases Review Commission in 2007 following the raising of issues about his conviction, a review process that ceased on his release.

But the core issue regarding the Lockerbie attack goes much further than details of legal proedure, important though these are. It concerns the question of Libyan involvement as a whole. This has been pursued by a number of people, most notably the families of some of the British passengers who were among the 270 people killed when Pan Am 103 exploded over Lockerbie.

A different scenario

Many press articles and broadcast documentaries have examined the background. A recent, detailed analysis is by Davina Miller in a leading academic security journal (see "Who Knows About This? Western Policy Towards Iran: The Lockerbie Case", Defense and Security Analysis, 27/4, December 2011). The intention of Miller's paper is not to reach a firm conclusion, but to use numerous sources (including United States and United Kingdom legal documents and intelligence-agency sources) to examine the argument that there is a convincing alternative narrative to the official one.

In the most compressed terms, the proposition at the heart of this narrative is that the attack was sponsored by Iran in retaliation for the deaths of 290 passengers and crew of Iran Air Flight 655 when this craft, an Airbus 300, was shot down in July 1988 over the Persian Gulf by the American guided-missile cruiser USS Vincennes.

The case does not claim that Iranian officials were directly involved in the Lockerbie bombing, but that they sponsored the Damascus-based PFLP-GC Palestinian paramilitary group to conduct the attack. This group both had the expertise and was known at the time to be working towards attacking western aircraft.

At first sight the idea seems far-fetched. After all, why would Libya surrender the two defendants for trial (in April 1999) and offer compensation of $2.7 billion to the bereaved families (in August 2003)? The counter-argument is that these moves were predicated on easing and even ending international sanctions, and that their timing was connected to Libya's effort to "come in from the (geopolitical) cold".

That aspect of the whole affair may still be problematic. But it has to be set alongside substantial problems with the case against al-Megrahi that Davina Miller analyses.

There are four elements involved:

* Luqa Airport in Malta, where the bomb was apparently put on a feeder flight, was regarded as a particularly secure airport and one that presented considerable difficulties for any individual or group that wanted to get a bomb onto a plane

* Al-Megrahi was identified as buying clothing in Malta, fragments of which were found among the remains of the suitcase containing the bomb; but there were serious doubts about the reliability of the identification

* Al-Megrahi used a false passport in Malta, though this was apparently common practice among Libyan security people (al-Megrahi was actually known to the CIA as a Libyan "technical communications expert")

* There were some problems with the forensic evidence presented at the trial, evidence that became very much more problematic after it when some of the forensic personnel were discredited for reasons of incompetence.

If al-Megrahi was not responsible for the Lockerbie attack, this still leaves the question of why the investigation focused on Libya and so neglected the possibility of Iranian involvement.

The argument here is that the Lockerbie attack came at a time when there was a need to improve relations between the United States and Iran, because of the influence Tehran had on the release of western hostages being held by its Shi'a allies in Lebanon. To focus systematic blame for Lockerbie on the Iranians would, it is argued, have made release of the hostages much less likely.

Perhaps the strongest aspect of the whole matter relates to the starting-point: that one of the two people tried for the mass murder was found not guilty, and even al-Megrahi's guilt was sufficiently problematic for his case to be up for review.

The major political changes in Libya in 2011-12 make it possible that further evidence may emerge there, though the hatred of the current leadership for the Gaddafi regime may make them more than willing for him to continue to take the blame. The answer, instead, may actually lie in Tehran, and might in due course be confirmed, but there is little probability of that in the near future.

What remains is the unsatisfactory situation that has received fresh attention with al-Megrahi's death. But Davina Miller's investigation does present copious evidence of exactly why the situation is unsatisfactory. This at least makes it less likely that the matter will now fade from view.

"The ingredients that make up the prosecution’s case are rotten"

[What follows is excerpted from an article published in Scottish lawyers’ magazine The Firm on this date in 2011:]

Gareth Peirce, the solicitor who overturned the miscarriage of justice convictions of the Guildford Four and Birmingham Six, has backed the call for a full inquiry into the Pan Am 103 debacle, and has directly criticised former Prime Minister Tony Blair’s role in shoring up “layers and layers of deceit” in the case.

Peirce, whose recently published book Dispatches from the Dark Side contains an essay entitled “The Framing of Al Megrahi” spoke to The Firm exclusively about the Pan Am 103 case and said that her involvement was prompted in part by her learning that the same discredited personnel whose flawed evidence was instrumental in convicting the Guildford and Birmingham convicts were also the providers of the key flawed evidence in the Megrahi case.

She has now criticised Scottish and UK Governments for “passing the parcel” over holding an inquiry, a matter the Scottish Government now concedes it has power to do, despite earlier denials. A petition for such an inquiry will be assessed by the new Petitions Committee.

“Because you have two countries involved, each is passing the parcel to the other,” Peirce told The Firm.

“The letter from the Scottish Government to the petitions committee says that in law, under the Inquiries Act, that Scotland cannot have an inquiry unless it is on a devolved issue, and the criminal justice system would be a devolved issue. But the letter adds that there are international implications, and therefore any inquiry should either be joint with England, or in England.

“There is a lot of truth in that, but as we saw with Megrahi’s return to Libya, Westminster claimed it was all the responsibility of Scotland, leaving Kenny MacAskill out on a limb. Yet, there is Blair busy with Gadaffi, desperately imploring Libya to make an application under the Prisoner Transfer Agreement. There are layers and layers of deceit here.”

Peirce says that the construction and maintenance of the discredited case against Megrahi has required active participation from those at all levels of the criminal justice system, with both tacit and overt support from the top of the political hierarchy.

“In the most notorious cases, everyone played their part, absolutely everybody,” she says.

“A big part of the blame lies within those who form the criminal justice system. It looks as if in the prosecution of the Lockerbie case, the defendants met the same fate, even to the extent of the same personnel featuring, in the person of the forensic scientists.”

The principal forensic analyst, Thomas Hayes, employed by the Crown to testify against Abdelbaset Al Megrahi was the same discredited analyst who was proven to have fabricated his evidence in the manufactured case against the Guildford Four.

He and Alan Feraday testified that the key forensic evidence, a fragment of circuit board, survived the explosion of Pan Am 103 and left traces of clothing connected to a shop in Malta. The owners of that shop provided the identification of Megrahi to the court, and were later found to have been paid in millions of dollars for their testimony. (...)

“That was the most shocking revelation to me,” Peirce says.

“Exactly the same forensic scientists who produced the wrongful conviction of Giuseppe Conlon, the Maguire family and of Danny McNamee, and had been stood down for the role they played. Yet here they were. Without them, there wouldn’t have been a prosecution, far less a conviction in Lockerbie.

“What shocked me most was that I thought that all that had been gone through on Guildford and Birmingham, the one thing that had been achieved was that nobody would be convicted again on bad science. But yet in the Lockerbie case, it isn’t just the same bad science, it is the same bad scientists.”

In July 2007 former MEBO employee Ulrich Lumpert swore an affidavit claiming that he had manufactured the crucial circuit board evidence and passed it to named individuals charged with investigating the Pan Am 103 case during 1989.

“All of this is screaming out for an inquiry. The ingredients that make up the prosecution’s case are really so rotten. They can’t and they shouldn’t sustain the weight of a presumed safe finding. You can see that they are utterly contaminated. They have no integrity. The forensic findings lack all the ingredients that should make them safe. The continuity of exhibits is all over the place. The only other pillar on which it is held up is this non-identification. It is just a catastrophe. The whole edifice is rotten, and it is astonishing it was ever stood up in the first place.”

[The long interview with Gareth Peirce in the same magazine can be read here.]

Tired old mantra

[What follows is a comment posted by me on this blog on 23 May 2012. I wouldn't today change a word.]

It is sad, but entirely in character, to see the Scottish Government and the Crown Office repeating the tired old mantra that the only proper way to address concerns over the Megrahi conviction is through a court of law. It is indeed true that the only way that the verdict can be overturned is through a further appeal. But we have clear evidence now of flaws -- indeed wrongdoing -- in the Lockerbie investigation and in the conduct of the prosecution. It is quite certainly not the case that only way in which these matters can be ventilated is in an appeal against the verdict. They are matters which have caused, or are capable of causing, public concern; and that is precisely the test that must be satisfied for an inquiry under the Inquiries Act 2005. It would be outrageous if police and Crown wrongdoing in a case could be exposed only if the accused person chose to exercise his right of appeal. Such wrongdoing is a matter of public concern and it is to address such concerns that the 2005 Act exists.  Moreover, such an inquiry could lead to a royal pardon (indeed royal pardons almost invariably flow from inquiries into cases in which there has been a conviction). A royal pardon does not overturn the verdict, which technically still stands, but it is an official recognition that the conviction was flawed. So there really is no constitutional or legal problem about asking for an inquiry into what went wrong in the investigation and prosecution of the Lockerbie case.

Lockerbie as a diplomatic weapon

[What follows is an excerpt from Megrahi's death - An end to a century of mistrust? by Jason Pack of Cambridge University, published on the Aljazeera website on this date in 2012:]

In 1988, Pan Am Flight 103 exploded over Lockerbie, Scotland in what was the deadliest "modern-style" terrorist attack of the 20th century. Since then, rather than searching for the genuine causes of the tragedy, the US and UK wielded Lockerbie as a diplomatic weapon against Libya. (...)

In the wake of the 1988 Lockerbie bombing, Ronald Reagan and Margaret Thatcher - both of whom had long standing personal grievances with Gaddafi - decided to isolate Libya from the international system. They and their successors used Lockerbie as a pretext to pass crippling UN sanctions. From 1992-1999, Libya was literally cut off from the world. International flights into and out of the country were forbidden, GNP dropped by over a third, oil infrastructure rusted and many Libyans grew up nursed by Gaddafi's anti-Imperialist rhetoric.

The economic damage from the sanctions compelled Gaddafi to back away from his support for international terror and to turn over Abdel Basset al-Megrahi (and his co-suspect Lamin Fhima, who was later acquitted) to face a Scottish tribunal at Camp Zeist in Holland. Conclusive evidence has never existed that Megrahi was actually involved in Lockerbie. To this day, many experts believe that he was indicted on fraudulent evidence from a Maltese shopkeeper and that the CIA bribed witnesses.

In 2003, Libya agreed to formally accept responsibility for the bombing, pay over two billion dollars in compensation to victim's families and voluntarily surrender its WMD program. This initiated a limited detente with the West. Yet, the relationship remained plagued by mutual suspicion and backsliding was common.

Gaddafi hoped to receive a warmer embrace from Western leaders and a greater flood of investment. Western diplomats hoped for significant internal political change as a precursor for warmer relations. In August 2009, Megrahi was released on humanitarian grounds from Scottish prison due to a diagnosis of terminal prostate cancer. He was accompanied back to Tripoli by Gaddafi's son, Saif al Islam. Cynics claim that the Scots released him to help BP secure a favourable contract.

American anger over the Scottish decision further poisoned US-Libyan relations (...)

Western politicians should bite their tongue and not engage in any grandstanding about Megrahi's passing.

In fact, they should no longer refer to Lockerbie when dealing with the new Libyan leadership. Furthermore, the sensationalist Western media should stop fueling the fire in an attempt to make the Megrahi controversy fresh again. Lockerbie is a decades-old sore. The time has come to stop picking the wound and let it heal.

Public interest immunity and security-vetted counsel

[What follows is the text of a report published in The Herald on this date in 2008:]

Prosecutors will next week attempt to throw an unprecedented veil of secrecy over the appeal of the Lockerbie bomber.

The Crown Office will ask judges to bypass the defence team of Abdelbaset Ali Mohmed al Megrahi and appoint special security-vetted advocates to represent him in a court hearing to decide whether a previously confidential document should be made public.

If the bid for a closed-door session is successful, it would be the first time in Scotland that such a step has been taken in a criminal case.

However, the tactic will fuel suspicions that the Crown is going to unusual lengths to preserve the UK's current diplomatic relations with other nations.

The paperwork, which originated in an unknown foreign country, is thought to contain vital information about the electronic timer which detonated the bomb that killed 270 people in the skies over Lockerbie.

It is not known if political pressure has been exercised directly on the Crown, but there have been previous instances in the Megrahi case where Britain's changed attitudes to foreign states since 1988 have played a key role in the legal process.

Foreign Secretary David Miliband has already said the document should remain confidential.

It was uncovered during the three-year investigation of the Scottish Criminal Cases Review Commission, which resulted in the case being referred back to the courts for a new appeal last summer. The commission concluded the failure during the original trial to disclose the document could constitute a miscarriage of justice. Although the Crown allowed the commission to see the material, it has refused to disclose it to Megrahi's defence team.

The Crown's latest move is expected to anger further his lawyers, who believe the failure to disclose the document calls into question the ultimate right to a fair appeal.

The request will be made on Tuesday at the Court of Criminal Appeal when the decision on whether to grant the defence access to the document is to be debated.

The Crown is expected to ask for the hearing to be held behind closed doors in the absence of the defence, who would be represented by special advocates. Public Interest Immunity hearings of this kind in criminal cases have previously been held only south of the border, where there is a statutory system in place, and a list of special advocates.

Megrahi's defence team has made it clear that it needs to see the document in order to proceed with the appeal, and has accused the UK Government of "interference" in the appeal.

If the prosecution denies access to the paper, Megrahi's lawyers are expected to argue that the conviction should be quashed because, without it, their client's right to a fair trial would be breached.

One legal expert said: "This is entirely unprecedented in Scotland."

A spokesman for the Crown Office said the court hearing is to be from from May 27 to 29 in Edinburgh. "It is not possible to provide further comment," he said.

[RB: It was, of course, the UK Government (represented by the then Advocate General for Scotland, Lord Davidson of Glen Clova QC) not the Lord Advocate or the Crown Office, that sought the appointment of a special security-vetted advocate. The court ultimately (and utterly wrongly) acceded to the request. If a further appeal takes place in consequence of the current application to the Scottish Criminal Cases Review Commission, will the present UK government adopt the same attitude? And, if so, will a differently constituted judicial bench be as supine as its predecessor? By the time those become live issues it is to be hoped that Prime Minister David Cameron will have got round to appointing an Advocate General -- at the time of writing the only ministerial office yet to be filled in the new UK administration.]

A smear on the quality of Scottish justice

[Miscellaneous media comments from 21 May 2012, the day following the death of Abdelbaset al-Megrahi:]

Alex Massie in The Spectator

Despite what the Prime Minister says, Megrahi’s guilt is not certain. As Ian Smart suggests, there is little consensus even amongst those best informed about the case. This was not a "slam-dunk" case. Far from it. The evidence for guilt or innocence is a close-run thing whichever side of the argument you choose to take. Moreoever, it is possible to be convinced the Libyans were responsible for Lockerbie while also suspecting that the evidence against them was only barely strong enough to secure a conviction. Indeed the layman might reasonably conclude that if ever a case made an argument for the Not Proven verdict, Lockerbie is that case. (The various appeals, remember, are a test of the evidence against Megrahi not of his actual guilt.)

Even so, one should not assume that the Scottish Criminal Case Review Commission’s report would have led to Megrahi’s conviction being overturned. This too makes Megrahi’s cancer as unfortunate as it may have been darkly convenient. Though Lockerbie is still, as the First Minister pointed out yesterday, a live case the prospects of getting a fully persuasive resolution to the bombing of Pan-Am 103 seem pretty bleak.

Kim Sengupta in The Independent

The vengeful pursuit of Megrahi, the feeling that he has somehow escaped justice by not actually dying in a cell, is the result of a genuine belief by some that he was guilty, allied to anger that his release was part of the many dodgy deals between the British government and Muammar Gaddafi's regime. Yet there are cogent reasons why so many others, including members of bereaved families such as Dr Jim Swire who lost his daughter Flora in the bombing, have been convinced that Megrahi's conviction was a miscarriage of justice.

Soon after the destruction of Pan Am flight 103 American and British officials were busy laying the blame on the Iran Syria axis. However, after Iran and Syria joined the US-led coalition against Saddam Hussein in the first Gulf War the same officials switched the blame to Libya, at the time very much a pariah state.

The trial of Megrahi and his fellow Libyan defendant Lamin Khalifa Fhimah at a specially constituted Scotttish court at Camp Zeist in the Netherlands came under criticism from international jurists. The two men were effectively charged with joint enterprise, yet only Megrahi was found guilty. The prosecution evidence was circumstantial; details of the bomb timer on the plane contradictory and the testimony of a key witness, a Maltese shopkeeper, shaky under cross-examination.

The evidence of a supposedly prime "CIA intelligence asset", codenamed "Puzzle Piece" who turned up in a Shirley Bassey wig, was widely viewed as risible. It emerged later that important evidence had not been passed on to the defence lawyers.

Professor Hans Köchler, a UN appointed legal observer, described the proceedings and a subsequent failed appeal by Megrahi as "inconsistent, arbitrary and a spectacular miscarriage of justice".

Editorial in The Herald

The Libyan's second appeal was on the basis of new evidence, after the Scottish Criminal Cases Review Commission ruled that there were six grounds for appeal. Details from the report have been printed in The Herald and the full report has been published online by our sister title the Sunday Herald. The grounds raise serious doubts about much of the forensic evidence on which the conviction relied as well as the veracity of the key witness, Tony Gauci, a Maltese shopkeeper, who is said to have been paid a substantial reward for his assistance in the investigation. Crucially, evidence that might have helped clear Megrahi was not shared with the defence. The second appeal was withdrawn when he was released on compassionate grounds in 2009, following his diagnosis of terminal prostate cancer. Regardless of whether he is innocent or guilty, there are grounds for a conclusion that he should not have been convicted and that a second appeal would have come to that conclusion.

Megrahi's death must not end the search for the truth. One option appears to be the possibility of one of the bereaved relatives taking up the appeal. Another would be for the Scottish or UK government to institute a judicial inquiry. This would be long and expensive but we cannot put a price on justice. A country can be judged by the quality of its judicial system. This case leaves a smear on the quality of Scottish justice that needs to be either contradicted or belatedly put right.

The example of the Bloody Sunday Inquiry shows that even long after the event, it is possible to put together a detailed narrative of an event that answers many outstanding questions and brings a measure of closure to the relatives of those who lost their lives. Even if Megrahi was guilty, he cannot have acted alone. If it is possible to identify those involved, they must be brought to justice. Those who in the name of some perverted political ideology would massacre innocent civilians need to know that they can run but they cannot hide.

Of course, part of the problem is that several foreign governments and groups may have had a hand in this atrocity and without regime change in those countries, they are unlikely to come clean. Early evidence pointed to a Palestinian group and both Iran and Syria have been suspected of involvement. After all, they had a motive: retaliation for the shooting down of an Iranian passenger jet by the American warship USS Vincennes in July 1988. That is no reason for not attempting to get to the bottom of what happened. In the short term, the most likely source of new information is Libya itself, where the new government has a vested interest in exposing the sins of the Gaddafi regime and any international links with other sponsors of international terrorism.

Political overtones, memory gaps and flawed evidence

[Abdelbaset al-Megrahi died on this date in 2012. What follows is excerpted from the obituary by Robert D McFadden published on 20 May 2012 in The New York Times:]

The enigmatic Mr Megrahi had been the central figure of the case for decades, reviled as a terrorist but defended by many Libyans, and even some world leaders, as a victim of injustice whose trial, 12 years after the bombing, had been riddled with political overtones, memory gaps and flawed evidence. (...)

Investigators, while they had no direct proof, believed that the suitcase with the bomb had been fitted with routing tags for baggage handlers, put on a plane at Malta and flown to Frankfurt, where it was loaded onto a Boeing 727 feeder flight that connected to Flight 103 at London, then transferred to the doomed jetliner.

After a three-year investigation, Mr Megrahi and Al-Amin Khalifa Fhimah, the Libyan airline station manager in Malta, were indicted on mass murder charges in 1991. Libya refused to extradite them, and the United Nations imposed eight years of sanctions that cost Libya $30 billion.

Negotiations led by former President Nelson Mandela of South Africa produced a compromise in 1999: the suspects’ surrender, and a trial by Scottish judges in the Netherlands.

The trial lasted 85 days. None of the witnesses connected the suspects directly to the bomb. But one, Tony Gauci, the Maltese shopkeeper who sold the clothing that forensic experts had linked to the bomb, identified Mr Megrahi as the buyer, although Mr Gauci seemed doubtful and had picked others in photo displays.

The bomb’s timer was traced to a Zurich manufacturer, Mebo, whose owner, Edwin Bollier, testified that such devices had been sold to Libya. A fragment from the crash site was identified by a Mebo employee, Ulrich Lumpert.

Neither defendant testified. But a turncoat Libyan agent testified that plastic explosives had been stored in Mr Fhimah’s desk in Malta, that Mr Megrahi had brought a brown suitcase, and that both men were at the Malta airport on the day the bomb was sent on its way.

On Jan 31, 2001, the three-judge court found Mr Megrahi guilty but acquitted Mr Fhimah. The court called the case circumstantial, the evidence incomplete and some witnesses unreliable, but concluded that ‘there is nothing in the evidence which leaves us with any reasonable doubt as to the guilt’ of Mr Megrahi.

Much of the evidence was later challenged. It emerged that Mr Gauci had repeatedly failed to identify Mr Megrahi before the trial and had selected him only after seeing his photograph in a magazine and being shown the same photo in court. The date of the clothing sale was also in doubt.

Investigators said Mr Bollier, whom even the court called ‘untruthful and unreliable,’ had changed his story repeatedly after taking money from Libya, and might have gone to Tripoli just before the attack to fit a timer and bomb into the cassette recorder. The implication that he was a conspirator was never pursued.

In 2007, Mr Lumpert admitted that he had lied at the trial, stolen a timer and given it to a Lockerbie investigator. Moreover, the fragment he identified was never tested for residue of explosives, although it was the only evidence of possible Libyan involvement.

The court’s inference that the bomb had been transferred from the Frankfurt feeder flight was also cast into doubt when a Heathrow security guard revealed that Pan Am’s baggage area had been broken into 17 hours before the bombing, a circumstance never explored.

Hans Köchler, a United Nations observer, called the trial ‘a spectacular miscarriage of justice,’ words echoed by Mr Mandela. Many legal experts and investigative journalists challenged the evidence, calling Mr Megrahi a scapegoat for a Libyan government long identified with terrorism. While denying involvement, Libya paid $2.7 billion to the victims’ families in 2003 in a bid to end years of diplomatic isolation.

The law's delays

[On this date in 2009 the first stage of Abdelbaset Megrahi’s second appeal was concluded. Here is what the Lord Justice General (Lord Hamilton) said at the conclusion of the proceedings:]

The court is much obliged to counsel on either hand for the careful and comprehensive submissions which have been made at this stage of the appeal. We will now, of course, require to give these submissions detailed and careful consideration. A question will arise as to whether it is appropriate to decide grounds 1 and 2 at this stage or, alternatively, to defer that decision until we have heard argument on other grounds, which are or may be closely related to them.

We appreciate that having regard to, among other things, the appellant's state of health there will be concern that we deal with these matters as expeditiously as possible. But having regard to their importance to all concerned, we cannot and must not rush to judgment.

Time has been set aside towards the end of this term for a procedural hearing in relation to further grounds of appeal. And in terms of the interlocutor of 18 March of this year, days were set aside in the week commencing 29 June for that purpose. For reasons which it is not necessary to go into, we intend to change that date or dates to dates in the week following that, that is the week commencing 6 July. We expect that by that time we will have reached a decision as to whether or not we should decide grounds 1 and 2 at this stage and to be able to intimate which course of action, either deciding them at this stage or deferring them, we have decided upon.

But by this time, we shall simply continue the appeal to the first of the dates which are now substituted for the procedural matters which we have referred to, that is to Tuesday 7 July of this year.

[RB: In the light of the stately pace which this statement demonstrates that the court thought appropriate in an appeal brought by a man with a terminal illness, I take leave to reproduce a comment that I had made on this blog on 26 October 2008:]

[T]he delay in bringing Mr Megrahi’s current appeal to the hearing stage has been appalling. Had a measure of urgency been shown, it is entirely conceivable that the appeal could have been over before now and the appellant back with his wife and children in his own country, a free man. The SCCRC had his case under consideration for more than three years before referring it back to the High Court. The submission made to them was, admittedly, a long and detailed one. But the issue of the trial court’s unreasonable findings ... is a very simple and straightforward one and required virtually no investigation other that a perusal of the relevant portions of the transcript of evidence. If the SCCRC decided early in its deliberations that the case was going to have to be referred back on this ground – and it is difficult to believe that it did not – then delaying taking that step for three years is hard to justify.

Then there is the delay that has occurred after the SCCRC referred the case to the High Court in June 2007.

More than sixteen months have passed since then. More than thirteen months have passed since the first procedural hearing in the new appeal was held. More than ten 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 is not in the book, have been asking the court to rewrite the book to insert it). These tactics include, to name but a few, raising difficulties about allowing the appellant access to productions used at the original trial; seeking to overturn previous appeal court decisions on the scope of the appeal in SCCRC references; and claiming public interest immunity on “national security” grounds in respect of documents which have been in the hands of the Crown for more than twelve years and which have been seen by the SCCRC. The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done little, if anything, meaningful to curb it.

Overweening arrogance best illustrated in the Lockerbie fiasco

[What follows is the text of a letter from Dr John Cameron published in today’s edition of The Scotsman:]

I suspect Nicola Sturgeon’s rejection of the call for judges to declare details of their finances in a register of interest will be recalled as her first major misstep as First Minister.

MPs, MSPs, councillors and board members of public bodies must register outside financial interests and judges, sheriffs and justices of the peace should be brought into line.

Scotland leading judge, Lord Gill, argued that acquiescing would “erode public confidence in the judiciary” – whereas most of the general public would argue the very opposite.

The Scottish judiciary has an overweening arrogance best illustrated in the Lockerbie fiasco and it is time they were told that rules which apply to the human race, apply also to them.

[A letter from Iain McKie published yesterday making a similar point can be read here.]

Test of post-Lockerbie airline security

[What follows is an excerpt from the Wikipedia article on Dr Jim Swire:]

On 18 May 1990, Swire took a fake bomb on-board a British Airways flight from London's Heathrow airport to New York's JFK* and then on a flight from New York JFK to Boston to show that airline security had not improved; his fake bomb consisted of a radio cassette player and the confectionery marzipan, which was used as a substitute for Semtex. Some American family members asked Swire to keep the news of the stunt quiet; it became public six weeks later. Susan and Daniel Cohen, parents of Pan Am Flight 103 victim Theodora Cohen approved of the plan, while some other family members of American victims did not.**

* Fineman, Mark (6 July 1990). "TERRORISM / ONE MAN'S CRUSADE : Fake Bomb Shows Hole in Security : The father of one of the victims of the Pan Am 103 tragedy demonstrates that it could happen again". Los Angeles Times.

**Cohen, Susan and Daniel. "Chapter 16." Pan Am 103: The Bombing, the Betrayals, and a Bereaved Family's Search for Justice. New American Library. 2000. 225.

The disgrace that is Lockerbie

[What follows is the text of a letter from Iain McKie published in today’s edition of the Sunday Herald:]

Paul Hutcheon's article highlights my belief that judges have an inappropriate power and influence in relation to how the legal system operates that can be a barrier to receiving justice in Scotland (First Minister rejects call for register of judges' interests, News, May 10).

Similar issues arise with the Lord Advocate, who remains a power almost without limits.

I see the First Minister's decision not to support a register of judges' interests as philosophically and constitutionally wrong. This political reticence to become involved in judicial matters harks back to the dim and distant past when properly the independence of the judiciary and Lord Advocate had to be protected from political interference.

Unfortunately this has morphed into a complete failure by our elected representatives to hold these authorities to account. With few exceptions they have washed their hands of their duty to ensure that the exercise of power is fair and proportionate.

Perhaps all of this is embodied in the disgrace that is Lockerbie where for over 26 years a whole system has sat on its hands and failed to help right a massive wrong. In essence the promise and hopes inherent in the SNP's clean sweep in Scotland is that things will be different. This stands for justice as well as the economy and it is to be hoped that our politicians are listening at last and can be educated and persuaded in this regard.