The verdict cannot possibly stand as a representation of historical fact

[The item that follows has been contributed by Dr Kevin Bannon:]

It appears that the vast majority of parliamentarians, jurists, academics and news editors in the UK - and their US equivalents - have very little idea of the extent of the affront to justice in the conviction of Abdelbaset Ali Mohmed al-Megrahi for the Lockerbie bombing, in which 270 people died on 21 December 1988. 

Just to recount the basics, the crime-scene was the largest in law enforcement history and police investigations took about three years. By international arrangement, Al-Megrahi’s special trial under Scottish jurisdiction and his appeal were held at Kamp Zeist, Holland in 2000-2001. He served 10 years until his release because of his terminal cancer and following his agreement to drop his planned second appeal. Al-Megrahi died in May 2012.

Here is a summary of matters largely omitted from the general narrative about the Lockerbie atrocity:

Investigation and Evidence

The most important item of hard evidence in the investigation was a centimetre square fragment of circuit-board, found, remarkably, within a debris field of hundreds of square miles. Just as fortunately, this was matched by its appearance to a commercially marketed circuit board from a timing device supplied to Libya. Despite that the fragment remains the only part of the explosive device found, no test for explosives residues was carried out on it – which one investigator described as “inconceivable” and “irrational”. In fact neither were such tests carried out on the fragments of the radio/cassette player housing the bomb, or the pieces of suitcase which had contained it – a series of evasions simply too outrageous to describe as an oversight. 

Despite a supposedly meticulous investigation, both the date of the fragment’s discovery and the identity of its discoverer remain contradictory and matters of dispute. Most suspiciously of all, the police evidence label pertaining to this item had been manifestly falsified, crucially altering its apparent provenance. 

It was never discovered how a bomb was introduced at Malta’s Luqa airport, nor how it transited unaccompanied through Frankfurt and Heathrow - supposedly impossible under security protocols. Instead of solving such outstanding issues, the largest criminal investigation in history has left us with only uncertainties and discrepancies.

A day or two after the Lockerbie bombing, a relatively intact suitcase was removed from the debris field by US officials and taken by helicopter to an unknown destination where its contents were ‘handled’. The suitcase had belonged to a US intelligence official on the passenger list. Four days after the bombing, two Americans believed to be from the CIA, returned the suitcase to the exact position from where it had been removed – a manoeuvre not logged in police records. 

In September 1989 a Maltese shopkeeper, Tony Gauci, described to police the visit of a Libyan to his shop in late November 1988 to purchase several clothing items which matched pieces later found near Lockerbie; these items had apparently been adjacent to the bomb in ‘the primary suitcase’ aboard PA 103. Gauci appeared to have a magnificent memory, and in his first police interviews – nine months after the purchase – he recalled most of the items bought by the customer, the total bill and the weather at the time. Unfortunately, he described in detail someone entirely unlike al-Megrahi both facially and in stature. In any event, al-Megrahi was not in Malta in late November 1988. However, Gauci changed all of his initial evidence in subsequent interviews – changes which were more consistently harmonious with police suspicions and later with the Crown prosecution case. The purchaser’s visit was now revised to December 7 – the only day in the timeframe consistent with al-Megrahi’s movements.

In a ‘photo-session’ al-Megrahi’s picture had been shown to Gauci amongst 11 other photographs of individuals, some of which had been blatantly ‘doctored’ - supposedly to make them more similar to the suspect; even under these circumstances a senior investigating detective gave a plainly illegitimate prompt to Gauci who then chose al-Megrahi’s picture – already known as the ‘correct’ choice to police officers observing the procedure in the same room. This became the clinching identification of al-Megrahi and the basis of his eventual indictment. An identification line-up observed by Gauci was held only years later after al-Megrahi’s picture had been widely publicised, but in any event, the procedure was again improperly set-up in the Crown’s favour. 

Two months before the Lockerbie bombing, an apparent Frankfurt-based plot to bomb an airliner had been uncovered by German police. Marwan Khreesat (possibly an alias) arrested as the supposed mastermind, was a Jordanian (i.e. pro-western) intelligence agent and was allowed to return home, despite being caught red-handed making bombs. One of these later exploded killing a German police investigator, but no reports of an investigation or a prosecution transpired; Khreesat has not been seen or heard in public since. 

Just two weeks before the PA 103 attack, a telephone warning was received in Helsinki about a plan to bomb a Pan Am transatlantic flight from Frankfurt. Despite this being recognised as entirely spurious by investigators, US and airline security officials took it seriously. The caller’s identity remains oddly obscure to this day and he was not prosecuted for his ‘hoax’.

Both the German and UK investigators concluded that neither the Frankfurt set-up nor the Helsinki hoax had any link to the Lockerbie bombing but the obvious artificiality and official suppression of facts surrounding these incidents remains profoundly suspicious. 

The Trial

The Helsinki and Frankfurt incidents were referred to frequently in cross-examinations at Kamp Zeist, helping create a backdrop concerning Middle Eastern bomb threats in Europe, and reminding the court that such terrorists were devious and repeatedly escaped justice. Additional to this undercurrent were a cohort of invisible Crown witnesses: three CIA agents and three more from the former East German STASI - gave evidence concealed behind screens, under pseudonyms and with their voices disguised – all for unexplained reasons. Three more CIA agents, similarly pseudo-named, did not attend court but supplied written statements. Several other Crown witnesses were so vaguely identified in court as to remain obscure. 

Four Crown witnesses were described as liars in open court without objection – because it was transparently obvious. A director of the company which supplied the Lockerbie bomb timer had been shown to have conspired to falsely implicate Libya in the Lockerbie bombing during the investigation. In another incident the same witness claimed to have contacted the CIA with another false story implicating Gaddafi and his security chief Abdullah Senoussi in the Lockerbie attack. These clumsy acts of espionage were justly treated as laughable by the Defence. For all practical purposes, witnesses at Kamp Zeist were free from risk of perjury charges which would normally be applicable in Criminal trials in Scotland. 

One major Crown witness, Abu Talb, was serving a life sentence for a terrorist murder and two more (a Mr. ‘Wenzel’ and one Mansour El Saber) had each been party to preparing explosive devices for terrorist purposes – so it was claimed.  Her Majesty’s prosecutors had never before been propped-up by such a motley collection of crooks and spooks.

The bomb’s introduction at Malta’s international airport was never established but the judges, like the police before them, decided that this is what must have happened because of al-Megrahi’s ‘identification’ by Tony Gauci. This highly improbable arrangement diverted the investigation away from straightforward, circumstantial evidence that the bomb was introduced at Heathrow – the most logical scenario, but of course entailing an entirely different conspiracy.

Despite facing 227 Crown witnesses, al-Megrahi, mild-mannered and of previous good character, was advised to say nothing in his defence – a suicidal defence strategy designed for jury trials of gangsters or otherwise ‘open and shut’ cases. Of only three witnesses who testified on behalf of the Defence, two were FBI men, whose organisation was backing the prosecution. 

The trial and appeal, among the most extensive in the UK’s legal history, were made considerably more lengthy and costly by the attendance of irrelevant Crown witnesses and vast tracts of waffle on points of law and case citations emanating from al-Megrahi’s advocate, without any perceptible contribution to al-Megrahi’s defence. Stupendous weaknesses in the Crown case went unchallenged, in particular Gauci’s contradictory police statements, details of which were almost entirely evaded in cross-examination.

Al-Megrahi’s appeal was prepared in such a way that it was doomed to fail – as even the judges themselves emphasised in their verdict.

After the trial and appeal, Gauci was paid ‘in excess of $2 million’ by the US department of Justice for helping the investigation - his brother received $1 million despite not appearing in court - such payments are not legitimate under Scottish law and if a witness has been promised, or has formed expectations about receiving such payment it should be disclosed to the defence, having significant relevance to the witness’s credibility. Other witnesses received substantial benefits for their information or testimony, whether in the form of money from the US or fishing trips and fancy hotel stays in Scotland, laid on by the police. 

The CIA’s witness

Crown witness Majid Giaka worked for the JSO (the Libyan external security organisation) and was on secondment with Libyan Arab Airlines in Malta around the time of the bombing. He was also a CIA mole and as a former colleague of the accused he was regarded as a principal Crown witness at trial. Giaka’s evidence included his sight of a box of TNT in the office drawer of the second accused; the Libyan Consul in Malta seen handling the same explosives; Libyan senior security officials speaking of surreptitiously placing a bag on an ‘English’ aircraft, and the two accused couriering a Samsonite suitcase – the same as the suspect suitcase - into Malta’s Luca airport from Libya. This might have been damning evidence were it to have been credible.

In preparing their case, the Defence, acquired copies of 25 redacted CIA reports or ‘cables’ understanding that these represented all relevant material on Giaka, and believing that the redactions were mere security formalities. However, Defence advocates accidentally got wind of the fact that the Crown had been shown greatly extended versions of the CIA cables at a ‘secret’ meeting at the US embassy. This was against the rule of ‘equality of arms’ - fundamental to the principles of fairness in an adversarial trial. The failure to notify the defence and arrange for the exposed cables to be shared was a duplicitous and illegitimate act in any event. The chief prosecutor Lord Advocate Colin Boyd was then obliged to make a statement admitting his responsibility for the issue but he belittled the significance of the redactions – telling the court that “While they may have been of significance to the Central Intelligence Agency, they had no significance whatsoever to the case”. 

This statement from the chief prosecutor, Scotland’s Lord Advocate, proved to be an outstanding misrepresentation. The court was left in the humiliating position of having to petition the CIA to reveal the redactions for the benefit of the Defence. After only a brief scan of the exposed passages Richard Keen QC for the second accused, was scathing about what had become ‘abundantly clear’:

‘…what is now disclosed is, in many instances, highly relevant to the Defence, and I frankly find it inconceivable that it could have been thought otherwise…Some of the material, which is now disclosed, goes to the very heart of material aspects of this case, not just to issues of credibility and reliability but beyond...’ 

The revelations showed that the CIA themselves had considerable doubts about Majid Giaka, believing he was a smuggler, was milking them for thousands of dollars and supplying little useful information, but plenty which was implausible. It was revealed that a further 11 cables featuring Giaka’s behaviour had been withheld from the Defence. The judge’s conclusions describe the man who had been posited as second principal Crown witness in the trial of the century. Majid Giaka attempted to give a ‘false impression of his importance within the JSO’. He had told the CIA that he had been in the JSO ‘secret files section’ when in fact he was in ‘vehicle maintenance’. He falsely claimed to be on familiar terms with senior JSO officials – and to be related to Libya’s former King Idris – which he was not. Giaka’s claims were ‘at best grossly exaggerated, at worst simply untrue’ the judges noted, and he was ‘largely motivated by financial considerations’. 

Inviting the CIA to assist with the Lockerbie investigation was an extraordinary error of judgement by the Scottish authorities. If the Kamp Zeist bench imagined the CIA to be a bona fide intelligence agency gathering information about security threats, they were mistaken. The US defence department has considerably greater, genuine intelligence resources to inform its defence department and government of such threats. The CIA is in fact a civilian institution, specialising in clandestine operations serving the interests, including the political interests, of the White House. The CIA’s ambit includes disinformation and propaganda and it has been infamous for manipulating events solely in the interests of the USA. Its methods have involved bribery, intimidation and murder and various other criminal means. Historically the CIA has assisted in the overthrow of benign governments – even those of democratic states and NATO members – and to have helped replace them with ruthless military juntas or corrupt and murderous oligarchs. 

The CIA’s contribution to the indictment of al-Megrahi was quite remarkable: the CIA came up with the commercial timing device brand which was matched to the circuit board fragment found near Lockerbie. The CIA also unearthed the photograph of al-Megrahi which led to his identification by the eyewitness. The CIA would also have supplied the court with the Crown’s principal witness but were exposed withholding the fact that Giaka was a liar. 

The CIA, whose personnel had tampered with the crime scene itself, have no place whatsoever in either assisting police investigations or in the gathering of information for use as evidence in criminal trials, most especially those in foreign jurisdictions, and with political implications. 

Expert views

Most citizens understand that a criminal trial is supposed to include a transparent examination and exposition of facts. Whence a conviction is reached, there should not be lingering doubts about the verdict. Every jurist, lawyer, academic investigator or researcher who has examined or analysed al-Megrahi’s conviction has reasoned that it represent an outstandingly blatant and audacious miscarriage of justice. These include:

• Robert Black QC, Professor Emeritus of Scottish Law at Edinburgh University, former General Editor of The Laws of Scotland: Stair Memorial Encyclopaedia and frequently referred to as ‘the architect of the Lockerbie trial’ - has described its verdict as ‘a disgrace and an outrage’.
• Britain’s most celebrated defence lawyer Gareth Peirce, whose advocacy led to the overturn some of Britain’s most infamous miscarriages of justice, called the Lockerbie trial outcome ‘the death of justice’. As well as describing certain aspects of the forensic investigations as ‘disgraceful’ she refers to political interference, believing that al-Megrahi was returned to his home in Libya because it suited Britain: She wrote: ‘The political furore has been very obviously contrived, since both the British and American governments know perfectly well the history of how and for what reasons he came to be prosecuted’
• American media analyst and economist, Emeritus Prof. Edward S. Herman addressed the CIA’s attempt to withhold from the court, evidence about Giaka’s character: ‘Only under considerable court pressure did they produce a limited number of documents which showed Giaka to have been an incorrigible liar and the CIA, The United States and prosecuting attorneys, to be dishonest’.
• Former US international lawyer and jurist Professor Michael P. Scharf, who had worked with the State Department on preparations for the indictment of the Lockerbie suspects, later formed the opinion that these were not based so much on evidence ‘...but rather on representations from the CIA and FBI and the Department of Justice about what the case would prove, and did prove.’ About Majid Giaka he declared: “It wasn’t until the trial that I learned this guy was a nut-job and that the CIA had absolutely no confidence in him and that they knew he was a liar.”
• Dr. Hans Köchler is one of Europe’s most eminent authorities on international law, in which he has made major contributions to the development of legal infrastructure. Reporting on his observations of the entire Camp Zeist proceedings on behalf of the UN, he wrote: ‘…foreign governments or (secret) governmental agencies may have been allowed, albeit indirectly, to determine, to a considerable extent, which evidence was made available to the Court.’ Dr Köchler described the verdict as ‘totally incomprehensible…a spectacular case of a miscarriage of justice.’
• Len Murray, now retired as one of Scotland’s most distinguished and experienced lawyers, found it inexplicable that the Court could ‘have drawn so many adverse inferences against the accused when there were other explanations that were just as likely...’. Mr. Murray believed that the court’s finding of the crucial date - on which the eyewitness controversially identified al-Megrahi - was established by a means which ‘bordered on the perverse’.
• Eddie MacKechnie, solicitor to al-Megrahi’s acquitted co-accused said: ‘This case was intelligence driven and the conduct of the CIA and other clandestine bodies had a very significant impact…the supposed evidence….was wholly inadequate and contrived’.
• Ian Hamilton QC. Former rector of Aberdeen University wrote: ‘‘I don’t think there’s a lawyer in Scotland who now believes that Mr. Megrahi was justly convicted’.

These eminent people are experts in their fields and mostly involved either directly with the Lockerbie case itself or with special knowledge of Scottish law, international law or terrorist trials. 

Undeniably, other jurists, terrorism experts or commentators have made public statements in support of al-Megrahi’s conviction, but these have avoided factual analyses, offering instead their confidence in due process of law:

• Anthony Aust was legal adviser to the UK’s UN Mission and later to the UK Foreign and Commonwealth Office department. Writing in a law journal he applauded the ‘ingenious use of international law’ in bringing the accused to justice - in fact the Kamp Zeist court was specifically an application of Scotland’s municipal law to an international case. Mr. Aust describes the trial as ‘This example of what can be achieved in the cause of justice...’
• Lord Advocate Colin Boyd QC, Scotland’s chief prosecutor in the Lockerbie trial, took a very similar view: “…these proceedings have demonstrated what the judicial process can achieve when the international community acts together…I hope that this can be the enduring legacy of the Lockerbie trial. It is one that cannot and must not be forgotten”.
• Stephen Emerson, a former staff member of the Senate Foreign Relations Committee, and author is Director of the Investigative Project on Terrorism which focuses on ‘Islamic and Middle Eastern terrorist groups’. While describing the Lockerbie forensic investigation as ‘meticulous’ Emerson frankly outlined his analytical priorities: ‘Rather than detail the actual components of the investigation, it is helpful to step back and consider the Pan Am 103 investigation and trial from a cost-benefit analysis perspective to determine whether U.S. interests were ultimately served’.

More recently Prime Minister David Cameron referred to Stephen Emerson as ‘a complete idiot’ for describing Birmingham, UK as “...totally Muslim where non-Muslims just don’t go in” on a US News broadcast.

Those who knew al-Megrahi personally have testified as to his good character. Investigative journalist John Ashton researched for a TV documentary about the Lockerbie bombing in the 90s and co-authored two seminal books about the affair and did research for Al-Megrahi’s legal team in preparation for his second appeal. He attested to the decency and integrity of al-Megrahi in August 2011:

‘I am as certain as I can be that al-Megrahi is innocent. His good manners and cooperative behavior won him respect from prison officers and inmates alike and he strongly desires to clear his name.’

Former Scottish Police Detective George Thomson researched for and interviewed contributors to the Al Jazzera film documentary Lockerbie: Case closed, including al-Megrahi himself. Thompson’s emotional, affectionate portrayal of al-Megrahi in the opening and closing minutes of the film fully substantiates the magnanimous, forgiving statements of al-Megrahi himself from his deathbed. I strongly recommend anyone to see Lockerbie Case closed and judge for themselves the sincerity of al-Megrahi’s comments.

See: http://www.aljazeera.com/programmes/2012/02/20122286572242641.html

Al-Megrahi’s conviction was not merely based on weak circumstantial evidence but on a collection of stark falsehoods and transparent absurdities. Once the imaginary ‘identification’ evidence against al-Megrahi had been authorised, the remaining case was constructed around it - in particular the evidence pertaining to the fragment of the bomb itself, which is contradictory in every aspect of its appearance throughout the investigation.

In the context of the conspicuous improprieties in both investigation and trial - the falsification of evidence and documents, the gaps in the forensic evidence, the contradictory testimony, the unknown witnesses, and the extent of circumstantial and hearsay evidence - the verdict cannot possibly stand as a representation of historical fact. 

Unlike most criminal trials, the outcome of the Lockerbie trial has had profound connotations for the development of foreign and security policies of the UK and the USA. It has strongly influenced popular and governmental attitudes to Middle Eastern terrorism, Islam, and the Arabic-speaking peoples in general. Based on the obvious discrepancies pervading the Lockerbie case, then even history itself appears to have been bent and continues on a perilously misguided course. 

I invite any jurist or expert to be the first to defend the conviction of al-Megrahi on a factual, analytical basis. I also invite members of the SCCRC or the Scottish Judiciary to respond informally or otherwise, to matters raised here, which are based entirely on either reputable, published sources or from notes made from the Kamp Zeist trial transcript or extracts from it. 

Hopefully, in the name of justice and humanity - and common sense - the Scottish or UK authorities will soon make a courageous decision leading to a root-and-branch review of this case. Taking no action is the most perilous option.

A furious reaction from the usual suspects

[What follows is the text of an article by Alex Massie published on this date in 2009 in the Coffee House section of The Spectator website:]

Back when I worked at Scotland on Sunday I was never the Lockerbie Guy. Nor was I even the Lockerbie Guy’s Assistant. For years every paper needed a Lockerbie specialist, not least because having one ensured that the rest of us didn’t have to follow the tortuously complicated story any more closely than the readers. Which is to say, I don’t know the extent of Abdelbaset Ali al-Megrahi’s involvement, though clearly even if he was involved he wasn’t the fellow who ordered or thought of the mission.

Still, the speculation that he might be released on compassionate grounds – he has been diagnosed with incurable prostate cancer – has provoked a furious reaction from some of the usual suspects. Con Coughlin, for instance, considers his potential release a "humiliating episode" and wonders if Megrahi, far from dying, might "suddenly make a miraculous recovery the moment he sets foot back in Libya". Does Con really think Megrahi has faked his own cancer? Perhaps!

Still, Coughlin is more restrained than Nile Gardiner who writes:

It would send completely the wrong signal to terrorists across the world that the West doesn’t even have the stomach to keep them in jail for more than a few years. Such a move will only encourage future terrorist attacks, and embolden our enemies.

It also defies belief that the United States government (most of the victims were American) would agree to such a deal being struck, though it could well be part of the Obama administration’s broader strategy of engagement with dictatorial regimes, including Libya. Barack Obama recently shook hands with Gadaffi at the G8 summit in Italy.

It is important in the coming days that US Senators and Congressmen, as well as British MPs, speak out against any release for Megrahi, and demand that he serve the rest of his days behind bars on British soil. David Cameron should also make his voice heard on the issue and call for a full explanation from the Brown government.

The families of those who were viciously murdered over Lockerbie deserve to be given a huge say over the fate of Megrahi – there appears to be little indication they have been fully consulted on the matter. The release of such a brutal terrorist, with the blood of hundreds of innocents on his hands, would be an affront to civilized values and a dangerous gesture of surrender to terrorism.

Frankly, it is hard to see how any decision made by Kenny MacAskill (the Scottish Justice Secretary) is going to have much impact upon international terrorism. For good or for ill. Perhaps we should keep Megrahi in jail even after he has died? That would show the terrorists that we’re serious!

I also find it curious that Gardiner seems to think that the American administration should have the power to decide what is, despite the international elements to the case, a decision for the Scottish legal and political systems. I dare say the Americans have been consulted, but unlike Gardiner, I don’t think that means giving them the power of veto. (It’s also worth remembering that it was the Bush administration that began the rapprochement with Libya, not Obama.)

Nor for that matter is there much point calling for a "full explanation from the Brown government" since, as Gardiner must know, it’s not a matter for Jack Straw to decide either. Equally, if permitting a man with terminal cancer the luxury of dying at home constitutes a "dangerous gesture of surrender to terrorism" then, really, we’re losing our minds. By this standard, letting Megrahi appeal his conviction must also be considered a dangerously naive, soft-on-terrorism decision. 

One final point: it’s interesting to ask who leaked this? Was it MacAskill wanting to "soften up" public opinion in advance of letting Megrahi go home, or was it a senior civil servant (or someone else) hoping to provoke a backlash against the idea and keep Megrahi in Scotland until he dies?

High Court opinion denying legitimate interest of victims' relatives

On 3 July 2015, three judges of the High Court of Justiciary ruled that relatives of the victims of the Lockerbie disaster did not have a “legitimate interest” to pursue an appeal against the conviction of Abdelbaset Megrahi for the murder of their family members. A brief statement of reasons for the decision was read out in court at the time. The court’s full written opinion, which adds little to the earlier statement, is now available. It can be read here.

Was Megrahi pressurised into dropping his appeal?

[What follows is the text of an article published on this date in 2009 in Scottish lawyers’ magazine The Firm:]

The Firm has learned from reliable sources within the Justice Department that pressure is being applied to Abdelbaset Ali Mohmad Al Megrahi to drop his appeal if he is to be considered for release on compassionate grounds.

The Firm is suspending normal operations for the day to ask Justice Minister Kenny MacAskill to answer one question:

“Has it ever been intimated to Megrahi or his representatives that he would be more likely to be granted compassionate release if he dropped his appeal?”

The Firm has previously reported on the possibility that some form of pressure or coercion was being applied to Megrahi through various channels to ensure that he dropped his ongoing appeal. Sources within the Justice Department have now confirmed that this point was “rammed home” when Libyan delegates met with Justice Department officials earlier this week.

“Not everyone within the justice [department] wants the Megrahi problem to go away,” a source within the Justice Department said.

“The Minister seemed set to do the decent thing, allow a dying man to go home and the appeal to continue. However the department has strongly intimated to the Libyans that if Megrahi is to be granted compassionate release he must first drop his appeal.

“This was the rammed home to the Libyans at their meeting with the Minister yesterday.

“Megrahi is desperate and will do anything to get home, including dropping his appeal, as his prisoner transfer request demonstrates. The Department knows it as does the minister. The Minister also knows that the majority of his electorate think Megrahi should go home and that the appeal will create – is creating – an almighty headache for the Scottish criminal justice system.

“The Minister and the department believe they are being smart – they look like the good guys, showing compassion to a dying man and avoiding flak from Dr Swire and others, while the unfortunate Megrahi is forced to deny himself justice and relieve the Crown, Police and judiciary of their albatross.

“The only way this catastrophe may be averted is if the double dealings of the department and Minister are exposed.”

The Firm understands that the Libyan delegation has been pressed to drop Megrahi’s appeal within the next 24 hours. The Firm is therefore asking the Justice Minister to provide a public assurance that the possible compassionate release of Megrahi is not conditional upon him first dropping his appeal.

[On the following day, 13 August 2009, The Firm published the Scottish Government’s response:]

“In answer to the simple question posed by The Firm, the answer is “No,” the Scottish Government said.

They got it wrong. But the question is: why?

[What follows is the text of a report in The Guardian on this date in 2012:]

The cancer diagnosis of the man convicted of the Lockerbie bombing was a "gift from God" to the Libyan, British and Scottish governments, Abdelbaset al-Megrahi's biographer has said.

John Ashton, who recently published a book on the former Libyan intelligence officer, told the Edinburgh international book festival: "Megrahi's cancer was a gift from God for everybody involved that had something to hide.

"It allowed his release, it allowed the final stages of the rapprochement between the UK and Libya, and it allowed the Scottish government to allow him out of prison on a legal basis that wasn't one laid down by the hated government in Westminster. It was a tragedy for Megrahi but I think everybody else was punching the air."

Ashton was joined at the talk on the Lockerbie bombing by other high-profile critics of the case. Jim Swire, who lost his daughter in the 1988 bombing of Pan Am flight 103, and Dr Hans Köchler, the United Nations observer at Megrahi's trial in the Netherlands, also took part before a capacity crowd.

Megrahi was sentenced to life for the bombing, which killed 270 in the aircraft and on the ground around Lockerbie. He was released from prison on compassionate grounds in 2009 after being diagnosed with prostate cancer, and he died in May this year.

The course of events was a "political fix", Ashton told the audience. But he denied the trial was a "grand conspiracy" involving a range of security services and leading all the way to heads of state.

"What I say is, first and foremost, that the judges got it wrong, for whatever reason, and the Crown Office withheld evidence," he said. "I'm sure they did so in good faith but their behaviour was utterly incompetent and shameful."

The three men highlighted areas of evidence that they said undermine the case against Megrahi, including a break-in at Heathrow airport and discrepancies over his identification in a shop in Malta.

Köchler said he could not understand why Megrahi was found guilty but his alleged co-conspirator was not. "If such an argument, if such an opinion of court, was presented by a student in a seminar, he would not have passed because it is full of contradictions," he said. "They got it wrong. But the question is: why?"

Swire believes that a bomb was taken on board at London. "During the whole trial we did not know that Heathrow airport had been broken into 16 hours before Lockerbie happened, it seemed to me very likely that was the technology that had been used," he said. "The whole concept that the thing came from Malta via Megrahi's luggage or anyone else's seemed to me far-fetched."

The panel's comments underlined the gulf between those who believe in Megrahi's guilt and those who feel he was innocent or the victim of a miscarriage of justice. US relatives in particular were angered by the Scottish justice secretary Kenny MacAskill's decision to free Megrahi because of his terminal cancer.

Majid Giaka offers his services to CIA

It was on this date in 1988 that Abdul Majid Giaka, a low level employee of Libyan intelligence (JSO), walked into the United States embassy in Valletta, Malta, and asked to speak to a CIA officer. From that date onwards he was a CIA asset and had many meetings with his American controllers. Although Pan Am 103 was destroyed on 21 December 1988, it was more than two years after that, when Giaka’s monthly US stipend was about to be cancelled, that he came up with information about Lockerbie. Without his “evidence”, it is in the highest degree unlikely that indictments would or could have been brought in either the USA or Scotland against Abdelbaset Megrahi and Lamin Fhimah.

The story of Giaka’s baleful rôle in the Lockerbie case is detailed in chapter 7, The Fantasist, in John Ashton’s Megrahi: You are my Jury. Other useful accounts can be found here on Caustic Logic’s website The Lockerbie Divide, and on this blog here.

A scapegoat in the...ugly world of international power politics

[What follows is the text of a statement by Professor Hans Köchler dated 9 August 2009:]

Back in August 1998 the United Nations Security Council had “welcomed” the resolution of the legal-political dispute between Libya and the governments of the United States and the United Kingdom over the explosion of Pan Am flight 103 over Lockerbie through the trial of two Libyan suspects before an extraterritorial Scottish Court in the Netherlands. While the dispute between the governments has been settled years ago and Libya now entertains businesslike relations with both the US and UK, the only individual convicted in the Lockerbie case, the Libyan Abdelbaset Ali Mohmed al Megrahi, still awaits a final verdict in his case, the announcement of which he may not live to see because, while in Scottish custody, he has fallen ill with cancer that was detected only at a time when, so the prison authorities say, it was already too late to administer more than palliative care.

The hopeless, indeed Kafkaesque, situation which the lone Libyan prisoner finds himself in is further aggravated by the fact that his second appeal has suffered from enormous delays – which are scandalous under any circumstances and, seen in the context of deliberate withholding of evidence, are tantamount to an obstruction of justice. His predicament became even more serious when certain quarters confronted him with the alternative of either giving up his appeal in order to be sent back to Libya on the basis of a recently ratified “prisoner exchange agreement” between the UK and Libya – or die in a Scottish jail.

Under these circumstances, Scotland’s Cabinet Secretary for Justice (who certainly has seen the latest medical reports) should act without further delay on Mr al Megrahi’s second request (the first was rejected) for “compassionate release” under the provisions of Scots law. This would allow the appeal to continue and avoid the circumstances of “emotional blackmail” the Lockerbie prisoner faces in regard to the prisoner exchange option. Apart from the convicted Libyan national’s right – under the European Convention on Human Rights and Fundamental Freedoms – to a proper judicial review, it is in the supreme public interest of Scotland and the United Kingdom that this second appeal proceed unhindered and that, eventually, a decision be reached beyond a reasonable doubt. This fundamental criterion of Scots law was not in any way met by the trial verdict and (first) appeal decision of the Scottish Court sitting in the Netherlands back in 2001 and 2002. The Opinions of the Court issued by the two panels of Scottish judges were inconsistent and based almost entirely on circumstantial evidence; on testimony of at least two key witnesses who had received huge amounts of money; on the opinions of forensic experts of, to say the least, dubious reputation and with problematic links to intelligence services; and on at least one piece of evidence that had been inserted at a later stage into the list of documents and apparently been tampered with. Furthermore, vital evidence such as that of a break-in at a luggage storage area at Heathrow airport in the night before the departure of the doomed flight had been withheld from the court during the first trial (a fact that still has not been properly explained), and further vital evidence is still being withheld in the phase of the second appeal due to the British Foreign Secretary’s having issued a so-called Public Interest Immunity (PII) certificate. Concerns similar to those which I had raised in my reports to the United Nations Organization in 2001 and 2002 about improprieties, irregularities and judicial malpractices have also been raised by the Scottish Criminal Cases Review Commission (SCCRC) that, in June 2007, referred Mr. al Megrahi’s case back to the appeal court, suspecting – as I had done on the day of the original verdict on 31 January 2001 – that a miscarriage of justice may have occurred. Regrettably, the SCCRC has decided to keep some of the reasons for its decision secret.

The public is also kept in the dark about what Scotland’s Justice Secretary discussed at his meeting with Mr al Megrahi at Greenock prison, which was indeed an unprecedented step in Scottish legal history. One thing should be taken for certain, however: If Mr MacAskill is a man of honour, he will not have made granting the prisoner’s request for “compassionate release” conditional upon the latter’s dropping the ongoing appeal. This would not only be morally outrageous, it would also be illegal in terms of Scots law and, as infringement upon a convicted person’s freedom to seek judicial review, in outright violation of the European Human Rights Convention the provisions of which are binding upon Scotland.

If Scotland prides itself in its unique judicial system, which it has practised since long before devolution, the authorities should exercise all efforts to repair the damage that has been done to the country’s reputation by the flawed judicial proceedings in the case of Abdelbaset Ali Mohmed al Megrahi. If Mr MacAskill is indeed serious about dealing with the matter strictly within legal parameters, as he repeatedly said, the competent Scottish authorities should finally make those steps that are necessary to identify the actual “Lockerbie bombers” (in the plural!) wherever they may be and however powerful they still may be, apparently having succeeded for so long in using the Scottish judicial system to make Mr al Megrahi a scapegoat in the strange and ugly world of international power politics.

Concern MI5 Gaddafi assassination plot could jeopardise Lockerbie trial

[What follows is excerpted from a report published on the BBC News website on this date in 1998:]

The BBC has broadcast an interview with the former MI5 officier David Shayler in which he spoke about an alleged plot by the UK's Secret Intelligence Service to kill Libyan leader Colonel Gaddafi. (...)

The revelations, after investigations by BBC journalist Mark Urban, are among the most damaging against the security services for decades and will put further pressure on the government to examine allegations that it has dismissed as "inconceivable".

They could also jeopardise moves to try two Libyan men accused of the Lockerbie airline bombing, which killed nearly 300 people in 1988.

An announcement is imminent over whether, after years of negotiations, Libya will hand over the suspects for trial in a neutral country.

Mr Shayler said he was not worried about the effect his allegations would have on the case because having seen the intelligence reports he said there was no chance of the two being handed over.

But Dr Jim Swire, campaigning for the Lockerbie relatives, said: "It is now over 500 weeks since my daughter was murdered at Lockerbie and this week the head of the Arab League is discussing a neutral country trial under Scottish law with Gaddafi in Tripoli and the last thing we wanted were allegations that British organisations had been trying to kill him."

UK and US detectives oppose release of Megrahi

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

Do not set 'guilty' Lockerbie bomber free, detectives plead

[This is the headline over an article in today's edition of The Times. It reads in part:]

The investigating officers who led the original inquiry into the Lockerbie bombing have made an unprecedented intervention in the case to argue against the release of the Libyan convicted of the attack.

In a letter to the Justice Secretary, Kenny MacAskill, the Scottish police chief and the FBI boss who led the international investigation 20 years ago launch a powerfully worded plea against the release of Abdul Baset Ali al-Megrahi, who is serving a minimum sentence of 25 years for his part in the bombing.

In the letter obtained by The Times, Stuart Henderson, the retired senior investigating officer at the Lockerbie Incident Control Centre, and Richard Marquise, the FBI special agent in charge of the US taskforce, whose detective work helped to convict Abdul Baset Ali al-Megrahi, insist that he is guilty. They also argue that his release would “nullify the dedicated work of dozens of law enforcement and intelligence officials around the world”. (...)

In the letter sent to Kenny MacAskill last month, Mr Henderson and Mr Marquise claim the evidence they gathered added to a “strong circumstantial case” against al-Megrahi, and point out that Libya has admitted culpability for the bombing of Pan Am Flight 103 on a number of occasions since.

They say that releasing him would make a mockery of the work undertaken during the Lockerbie investigation, the biggest murder inquiry in British history, involving Scottish police, Scotland Yard, the FBI and other agencies from around the world.

The pair write: “To release Mr Megrahi to a regime which has admitted culpability for killing 270 citizens of the world would be a mistake. It would nullify the dedicated work of dozens of law enforcement and intelligence officials around the world who only wanted to find the truth.”

The detectives acknowledge al-Megrahi's poor health but contend it should not be a reason to release him.

“The eight judges who have already heard the evidence including three who were able to observe each witness under direct and cross-examination came to the same conclusion the rest of us did - Mr Megrahi was guilty of murder. His current health situation does not change that.”

Mr MacAskill, who is awaiting independent medical reports assessing al-Megrahi's condition, is expected to make a decision on his future by the end of this month. On Wednesday, the minister took the unprecedented step of visiting the Libyan in jail, prompting accusations that he was undermining the legal process. Al-Megrahi's second appeal is currently under way, although he will be forced to abandon his attempt to clear his name if he wishes to pursue a prisoner transfer. Release on compassionate grounds would allow him to continue with the appeal after being freed.

[Note by RB: Mr Henderson and Mr Marquise are gravely in error when they say that "The eight judges who have already heard the evidence ... came to the same conclusion as the rest of us did - Mr Megrahi was guilty of murder." Only the three judges at the Zeist trial heard the evidence and reached that conclusion. The five judges at the 2002 appeal made it clear that they had not considered the sufficiency of the evidence against Megrahi nor whether any reasonable tribunal could have convicted on that evidence. In paragraph 369 of their Opinion they said:

“When opening the case for the appellant before this court Mr Taylor [senior counsel for Megrahi] stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence. He also stated that he was not seeking to found on section 106(3)(b) of the 1995 Act [verdict unreasonable on the evidence]. His position was that the trial court had misdirected itself in various respects. Accordingly in this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment. We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.”

The true position, as I have written elsewhere, is this:

"As far as the outcome of the appeal is concerned, some commentators have confidently opined that, in dismissing Megrahi’s appeal, the Appeal Court endorsed the findings of the trial court. This is not so. The Appeal Court repeatedly stresses that it is not its function to approve or disapprove of the trial court’s findings-in-fact, given that it was not contended on behalf of the appellant that there was insufficient evidence to warrant them or that no reasonable court could have made them. These findings-in-fact accordingly continue, as before the appeal, to have the authority only of the court which, and the three judges who, made them."

In June 2007, after a three-year investigation, the Scottish Criminal Cases Review Commission came to the conclusion that Megrahi's conviction may have constituted a miscarriage of justice. One of its six reasons for so finding was that in respect of absolutely crucial findings in fact by the trial court (the date of purchase of the clothing that surrounded the bomb and, hence, the identity of the purchaser) no reasonable tribunal could have reached the conclusion that the evidence established that it was Megrahi.

And whether Libya has admitted culpability for the Lockerbie tragedy has no bearing on whether a particular Libyan citizen was properly convicted or should now be released on compassionate grounds. But, of course, Libya has not admitted culpability. Here is a link to the official Libyan position which is that "Libya accepts responsibility for the actions of its officials". If, as a result of the present appeal, Megrahi's conviction is quashed there is no Libyan government admission of responsibility or culpability.]

AAIB Lockerbie report submitted 25 years ago

On this date in 1990, the Air Accidents Investigation Branch (AAIB) submitted its report on the destruction of Pan Am 103 over Lockerbie to the Secretary of State for Transport, Cecil Parkinson. The 58-page report was prepared by a team headed by M M Charles and can be read here.