Elevation to peerage of Lord Advocate Colin Boyd

[What follows is excerpted from a report published in The Herald on this date in 2006:]

Colin Boyd, the lord advocate, was yesterday made a working peer in the House of Lords, fuelling the debate about the independence of his role as head of the prosecution service in Scotland.

Questions were also asked of his ability to carry out this new function while still retaining his other role as legal adviser within the Scottish Cabinet.

There was confusion over the status of Mr Boyd, with the Crown Office stating that he would become a Labour working peer, while Downing Street said that he would sit as a crossbencher.

Mr Boyd said: "It is a great honour, both personally and professionally, to be appointed to serve in the House of Lords. I look forward to playing an effective role in policy-making for the UK, especially in relation to Scottish affairs.

"In particular, I will be in a position to make a significant contribution to debate on reserved issues which affect Scotland. The ability to represent in the House views which are relevant to my duties as a Scottish law officer is welcome, and I will take all opportunities to make useful contribution to debate in this regard.

"I remain firmly committed to the full-time role of lord advocate, leading the Crown Office and procurator-fiscal service, and seeing through the programme of reform I initiated four years ago. I see the appointment to the House of Lords as a natural extension of my duties as lord advocate."

Nicola Sturgeon, SNP leader at Holyrood, said: "The role of lord advocate is already too political by being in Cabinet, I fear this may make it worse. The time has come for the lord advocate to become genuinely independent of politics and not a member of the Cabinet."

David Mundell, the Tories' shadow Scottish secretary, said: "This shows the complete contempt Labour has for the House of Lords and the institutions of democracy. Either Colin Boyd is a member of the government or he is a crossbencher - he can't be both."

[RB: It was Colin Boyd who as Lord Advocate, after consulting other members of the prosecution team, made to the Lockerbie trial court the false assertion that there was nothing in the CIA Giaka cables that could assist the defence in their cross-examination of the Libyan defector. This incident forms the basis of one of the allegations of criminality in the Lockerbie investigation, prosecution and trial that are currently under investigation by Police Scotland.]

Lockerbie: the investigation remains live

[This is the headline over the fifth and final instalment of Dr Morag Kerr’s series of articles on the Lockerbie case. It appears in the April edition of iScot magazine and reads in part:]

Not even those who believed Abdelbaset al-Megrahi was guilty of the Lockerbie bombing ever imagined he acted alone.  This was always understood to have been an act of state-sponsored terrorism, and the official line was that Colonel Muammar Gaddafi had ordered the attack in revenge for the US bombing of Tripoli and Benghazi two years earlier in 1986.  Megrahi was merely the pawn who had been caught.  However, the acquittal of his co-accused Lamin Fhimah, who had originally been proposed as the man who put the bomb on the plane, left the identity of the other conspirators entirely up in the air.

Recognising this, the Lockerbie investigation remained live even after Megrahi’s conviction.  Initially it was largely a paper exercise, and the search for his supposed accomplices was seldom mentioned before August 2009, when he was released on compassionate grounds.  Instead the debate centred around whether Megrahi himself had been wrongly convicted, with the SCCRC report of 2007 enumerating no less than six grounds on which they believed a miscarriage of justice might have occurred.

Megrahi’s abandoning of the resulting appeal a few days before his release is mired in controversy.  On the face of it, the timing strongly implies some sort of quid pro quo.  His advocate Maggie Scott stated straight out that her client had been forced to give up the appeal as a condition of being allowed to return to Libya, but Kenny MacAskill, Justice Secretary at the time, has always denied putting pressure on Megrahi.

Following Megrahi’s return to Libya the Crown Office announced that it was pursuing fresh inquiries into the circumstances of the bombing, with a team of detectives assigned to the case and forensic evidence being reviewed.  Initially this was assumed to be a new, open-minded investigation prompted by the very real doubts highlighted by the SCCRC.  However, it soon became clear that it was anything but.  Despite Megrahi’s continuing protestations of innocence and the SCCRC’s findings remaining untested in court, the Crown Office decided to treat his withdrawal of appeal proceedings as a de facto admission of guilt.  There was to be no question of reconsidering the case against Megrahi.  The new investigation was focussed, exclusively, on identifying his presumed accomplices.

Initially the Gaddafi regime provided at least token co-operation, but little progress was made in the first two years.  In late 2011 the fall of Gaddafi  provided an entirely new playing field, with the Libyan rebels anxious to curry favour with the western powers, and in particular to lay the blame for every evil deed of the past forty years firmly at Gaddafi’s feet.  Nevertheless, this again amounted to very little.  The only relevant document found in the aftermath of Gaddafi’s overthrow was a letter from Megrahi to a Libyan official, in which he protested his innocence and asked for help to clear his name.  Several renegade Gaddafi-era officials anxious to reposition themselves in the new order advertised that they had evidence that Gaddafi had personally ordered the bombing of Pan Am flight 103, but this “evidence” turned out to be no more than a declaration that Megrahi wouldn’t have dared to do such a thing without an express order from Gaddafi, and pointing out the well-known fact that Gaddafi had paid for Megrahi’s legal representation and supported him while he was in prison.  The Crown Office issued periodic press releases emphasising their commitment to identifying the “others” with whom Megrahi had supposedly acted, but details of any actual progress were scanty to nonexistent.

Meanwhile those campaigning for Megrahi’s conviction to be reviewed were also active.  Members of the committee of Justice for Megrahi were concerned that not only were there serious grounds for believing the conviction to be a miscarriage of justice, but that the original inquiry and court proceedings might well have been tainted by misconduct.  After considerable discussion and soul-searching it was decided to lay these suspicions before the relevant authorities.

Formal allegations of criminality were drawn up against a number of individuals involved in both the 1988-92 police investigation and the 2000-01 court proceedings, eventually amounting to nine allegations in total supported by a 63-page dossier of evidence and legal argument.  Given that these allegations involved members of the Dumfries and Galloway police force and Crown Office personnel, it was difficult to know to whom the dossier should be submitted.  Accused bodies can’t themselves investigate the accusations against them – can they?  A letter was sent to Kenny MacAskill asking, in confidence, how Justice for Megrahi should proceed.

The reply was that the allegations should be submitted to the Dumfries and Galloway constabulary.  While JFM was unhappy with this instruction there was no option but to comply, and the dossier was sent to the then Chief Constable of the D&G, Patrick Shearer.  The reaction from the Crown Office was even more disconcerting.  Even before the detailed allegations had been submitted the Lord Advocate Frank Mulholland branded them “deliberately false and malicious” in the pages of the Scotsman, and dismissed the Justice for Megrahi group as “conspiracy theorists”.

The initial 2013 investigation of the allegations was unimpressive. (...)

The establishment of Police Scotland, combined with some pointed complaints, heralded a transformation.  A team of detectives was assigned to investigate the allegations, codenamed “Operation Sandwood”.  These officers have been working diligently on the material submitted by JFM for over two years.  Although a report was originally expected by the summer of 2015, the need to follow up additional leads and the desire to do a thorough job caused this to be postponed, and submission is currently expected in May 2016.

The allegations cover three main headings.  First, that the original police and forensic investigation ignored or sidelined crucial evidence demonstrating that the bomb was already in the baggage container an hour before the feeder flight from Frankfurt landed at Heathrow.  Second, that while police and forensic investigators knew very well that the metallurgical analysis of the printed circuit board fragment PT/35b showed that it had never been part of one of the MST-13 timers supplied to the Libyan armed forces, this information was concealed from the defence and the court, even to the point of a witness giving misleading testimony in the witness box.  Third, that the handling of the witness Tony Gauci was improper even by the standards of 1991-92, with the police investigation focussed on acquiring statements that could be represented as identifying Megrahi as the man who bought the clothes packed in the bomb suitcase rather than investigating dispassionately whether this was actually likely to be the case.  A fourth ground concerns misleading and untrue information supplied to the court by a member of the prosecution team, concerning the credibility of the witness Abdul Majid Giaka.

Thus, for the past two years, two fundamentally conflicting Lockerbie inquiries have been ongoing within Police Scotland.  The Crown Office’s own investigation, predicated entirely on the assumption that the bomb was introduced into the airport baggage system on Malta, and Operation Sandwood, which is examining evidence showing that the crime happened at Heathrow airport.  Something has to give.

The Lord Advocate has made it entirely clear that he gives credence to one position and one position only, the Malta origin theory. (...)

Operation Sandwood is due to submit its report in a few weeks time.  The dispute now centres on who will consider that report and decide whether charges should be brought as a result of the investigation.  As Crown Office personnel are among those accused, Justice for Megrahi strongly believes that the Crown Office should stand aside in favour of an independent prosecutor appointed from another jurisdiction.  The Lord Advocate however insists that the report will be considered by the Crown Office, merely conceding that he will not personally become involved in the process.

The Lord Advocate has fatally compromised his own position.  He has repeatedly attacked Justice for Megrahi in the most intemperate manner, publicly denouncing the original allegations as “defamatory, deliberately false and malicious” before he had even read them.  How or why the organisation he heads should not be excluded from the process on the same grounds has not been explained.  At a press conference on 16th March 2016 Mr. Len Murray, one of Scotland's most distinguished court practitioners and committee member of Justice for Megrahi, denounced Mr. Mulholland’s behaviour as scandalous and declared that his position was now untenable.

Nevertheless, this is perhaps not the fundamental issue.  If Operation Sandwood recommends criminal proceedings should follow as a result of their investigations, the law should take its course.  However, such a recommendation is by no means certain.  If there is insufficient evidence of wrongdoing to warrant any prosecutions, should the matter end there?

The reputation of Scotland’s criminal justice system rests on how this matter is handled.  A scandal of monumental proportions is brewing.  If the Operation Sandwood report confirms that the original Lockerbie investigation was completely off the rails, that it was looking for the bomb in the wrong airport, that it accused Libya on the basis of a fragment of printed circuit board that was never part of a device supplied to that country, and that it cajoled and bribed a witness to identify a man he’d never seen before as the purchaser of the clothes packed in the bomb suitcase, this cannot and must not be buried in top secret archives to spare the blushes of the Crown Office.

The answer to the most fundamental question about the Lockerbie disaster lies within the report being prepared by the Operation Sandwood detectives.  Where did the bomb that blew apart Pan Am flight 103 nearly six miles above the town begin its journey?  The people of Scotland, and the relatives of the dead, have the right to know.

[RB: This blog’s coverage of the four previous articles by Dr Kerr can be found here.]

The Lockerbie ‘cover-up’

This is the headline over an article by Derek Lambie published in the Sunday Express on this date in 2006. It is in large part based on an interview with Dr David Fieldhouse. A fuller account of the shocking treatment to which Dr Fieldhouse was subjected by the Crown over his involvement in the aftermath of the Lockerbie disaster can be read here.

Officials 'did not cancel trips on Lockerbie flight'

[This is the headline over a report published on The Herald website on this date in 1989. It reads as follows:]

A State Department official denied today that US Government personnel, benefiting from a Government warning, cancelled flights on the Pan American airliner blown up over Lockerbie last December.

Mr Clayton McManaway, associate coordinator at the department's counter-terrorism office, said the conclusion had been backed up by an extensive analysis of Pan Am's reservation, cancellation and ''no-show'' records of Flight 103.

Allegations that officials with inside knowledge cancelled flights followed disclosure that the US embassy in Moscow posted a Federal Aviation Administration bulletin reporting that a bomb threat against US planes flying from Frankfurt to the United States had been received in Helsinki.

Mr McManaway told a Senate Foreign Relations subcommittee hearing the posting was made in contravention of Government policy and that FAA bulletins were meant for US airlines so they could take counter-measures.

He said 31 US Government personnel were on board Flight 103 and were among the 259 killed when the Boeing 747 exploded in midair on December 21. Eleven people died on the ground in Lockerbie.

He said the flight, which had a capacity of 400, had never been sold out and that only 17 passengers were ''no-shows'' -- well within the percentage expected on such a flight.

Lockerbie verdict 'politically influenced'

[This is the headline over a report published on the BBC News website on this date in 2001. It reads as follows:]

A United Nations observer at the trial of two Libyans accused of the Lockerbie bombing has said the judgment appeared to be politically influenced.

Speaking at a conference on the trial at the Arab League headquarters in Cairo, Austrian philosophy Professor Hans Köchler said there appeared to be pressure from the USA and UK.

Prof Köchler was one of five people appointed to observe the trial held at the Scottish Court in Camp Zeist in the Netherlands.

Abdelbaset Ali Mohmed Al Megrahi was sentenced to life in prison after being found guilty of the killing of 270 people in the 1988 bomb attack on Pan Am Flight 103.

His co-accused Al Amin Khalifa Fhimah was acquitted and has since returned to a hero's welcome in Tripoli.

Prof Köchler, who said his views were his own and not those of the United Nations, said: "The present judgment is logically inconsistent.

"You cannot come out with a verdict of guilty for one and innocent for the other when they were both being tried with the same evidence.

"In my opinion, there seemed to be considerable political influence on the judges and the verdict.

"My guess is that it came from the United States and the United Kingdom. This was my impression.”

The Innsbruck University professor said he had submitted his report on the trial to UN General Secretary Kofi Annan, who had forwarded it to the Scottish authorities.

The conference is expected to discuss Libyan demands for sanctions to be abolished.

Both US President George W Bush and UK Prime Minister Tony Blair have said that sanctions will not be lifted until Libya accepts responsibility for the bombing and pays compensation.

Al Megrahi's legal team are appealing against his conviction.

[RB: A fuller account by Neil Mackay in the following day’s Sunday Herald can be read here.]

First appearance of Megrahi and Fhimah in Scottish court

[On this date in 1999 Abdelbaset al-Megrahi and Lamin Fhimah made their first appearance in a Scottish court. What follows is excerpted from a report by Ian Black in The Guardian:]

Two Libyans accused of murder and conspiracy in connection with the Lockerbie bombing yesterday made their first appearance before a Scottish court which has been convened in the Netherlands.

Abdel-Basset al-Megrahi, aged 46, and Lamen Khalifa Fhimah, aged 42, allegedly Libyan intelligence agents, were charged in a hearing before Graham Cox, sheriff principal of Strathclyde, Dumfries and Galloway. They will be committed for trial on April 15.

Before the arraignment at Camp Zeist, a former US air base now under Scottish jurisdiction, officials spent two hours reading out to the men the warrants for their arrest in Arabic and English as well as the names of each of the 270 people who died on Pan Am Flight 103 and on the ground in Lockerbie on December 21, 1988.

The two men were remanded in custody at HM Prison Zeist.

The Libyans appeared separately at the five-minute hearing, accompanied by lawyers, UN observers and interpreters. Each spoke once, to say 'yes'' in Arabic to confirm their identities. Both men deny the charges.

The accused left Tripoli on a UN plane on Monday, more than seven years after first being indicted in Scotland and the US.

Yesterday Scottish police were fingerprinting, photographing them and taking DNA samples.

Monday's handover marked the end of a diplomatic and legal struggle to bring the alleged bombers to court. It has led to the suspension of the UN sanctions on Libya imposed in 1992 to force their surrender. The Security Council has said it would consider lifting the sanctions altogether if Libya publicly renounces terrorism and complies with other UN demands.

British firms are now waiting to resume potentially lucrative trading links with Libya, but both the Foreign Office and the Department of Trade and Industry warned yesterday that the formality of lifting sanctions could take months to complete.

The British Libyan Business Group, a lobbying organisation, said that it was planning a direct flight to Libya to 'fly the flag and open negotiations for major business development'. Lord Steel, the Liberal peer, and MPs Teddy Taylor and Tam Dalyell are among the public figures being invited to join it.

Italian and French firms, competing for the lion's share of the Libyan market, are already planning similar promotional flights. (...)

In 1992 the value of British exports to Libya was £228 million while £162 million worth of goods were imported. Most British exports were industrial machinery and equipment, pharmaceuticals, chemical materials and products and electrical appliances. The main imports were petroleum products and organic chemicals.

In another clear sign that Libya wants to move quickly back to business as usual, Libyan Arab Airlines said yesterday it was considering resuming international flights after the lifting of the UN flight ban.

But a long legal haul is only just beginning. Under Scottish law, the trial should start in 110 days but lawyers for the accused are expected to ask for an extension to give them more time to prepare their defence, which could delay the trial's start by between six months and a year.

The Zeist trial is to be heard, uniquely, by a three-judge panel but no jury. It is expected to last a year or longer. If convicted, the suspects will serve their sentences in Barlinnie jail, Glasgow, Scotland's highest-security prison, with the unprecedented privilege of being under permanent observation by UN monitors.

Lockerbie suspects head for trial

[This is the headline over a report published on the BBC News website on this date in 1999. It reads as follows:]

The two men suspected of the Lockerbie airline bombing more than 10 years ago have arrived in the Netherlands to face trial.

As a result the UN Security Council has suspended sanctions against Libya.

The men were finally handed over into the custody of United Nations officials at Tripoli airport on Monday morning.

During the handover ceremony, suspected bomber Abdel Baset Ali Mohamed al-Megrahi told Libyan television that he and his co-accused, Al-Amin Khalifa Fhimah, were going to prove their innocence to the world.

The two men gestured with victory signs as they boarded the plane bound for the Netherlands, escorted by the UN's chief legal adviser, Hans Corell.

UN Secretary-General Kofi Annan has welcomed the surrender of the suspects.

"I am looking forward to the earliest possible resumption of Libya's relations with the rest of the international community," Mr Annan told a news conference in New York.

The UN imposed sanctions on Libya for its refusal to surrender the two men.

United Kingdom Foreign Secretary Robin Cook described the handover of the suspects as "an historic moment".

"It is the end of a 10-year diplomatic stalemate, and it justifies the initiative we launched last year for a trial in a third country."

The US described the handover as a "positive step."

"This is clearly welcome news, although long overdue," White House Press Secretary Joe Lockhart said.

The two suspects are expected to be tried before Scottish judges, in a specially-convened court at the Camp Zeist airbase near Utrecht.

Pan Am flight 103 exploded over Lockerbie in 1988, and a large piece of the fuselage fell onto the Scottish town.

The crash killed 259 people on board the plane, and another 11 on the ground.

The handover of the two men is the culmination of a decade of diplomatic efforts to find a solution which would satisfy the governments of Libya, the UK and the United States.

Western governments and the families of those killed in the bombing have maintained that a Libyan trial would not ensure a fair hearing.

Tripoli did not want the suspects to be sent to the UK.

Setting up a temporary Scottish court on the soil of a third country was put forward as a compromise solution.

The deal was eventually clinched with the intervention of leaders from South Africa, Egypt and Saudi Arabia.

Jane Swire, whose daughter Flora died in the bombing, said she was "very relieved" at the news of the handover.

"Obviously nothing can bring back the precious people that we have lost and that still hurts," Mrs Swire said.

"At least this is a good message for the world. People who are accused of wicked crimes like this are brought to justice."

The trial arrangements are said to be unprecedented in legal history, since they involve the establishment of a temporary court under the jurisdiction of one country, within the borders of another country.

After the suspects arrive in the Netherlands, they will have to be extradited from Dutch to Scottish custody, and the Zeist airbase has temporarily been declared Scottish territory.

The suspects must face a preliminary hearing within two days.

The trial should begin within 110 days, but given the complexities of the case, the defence is bound to request a postponement meaning the trial may not start for many months.

[RB: The above report was accompanied by another, headlined Analysis: Legal firsts for Lockerbie trial.]

Police officer recalls Lockerbie bomber arrest

[What follows is taken from a report just published on the BBC News website:]

A senior police officer has spoken of the moment he arrested the man later convicted of the Lockerbie bombing.

Mike Leslie, who has retired after 30 years service, said Abdelbaset al-Megrahi was "bewildered and dazed".

It took five hours to read the arrest warrant to the Libyan intelligence officer - but he gave no reaction. (...)

He was tried at a specially convened Scottish court sitting at Camp Zeist in the Netherlands.

After serving eight years in prison, he was controversially released on compassionate grounds following a terminal cancer diagnosis.

Mr Leslie was one of three officers from Dumfries and Galloway who were at Camp Zeist when Al-Megrahi arrived there in 1999.

He said: "I think he was pretty bewildered, dazed by the events that were unfolding in front of him.

"I don't think ultimately he ever anticipated... that he would be handed over by Gaddafi.

"I actually read the warrant over to him.

"It took approximately five hours because you had to read the warrant over a line at a time, it went through an interpreter and also as part of that process, the 270 names of the victims had to be read over as well."

The former chief superintendent added: "There was never any reaction from him. It was very much staid and what you would expect from someone, I would imagine, that's been trained to give no reaction.

"But I think it boils down to the fact that he was pretty well bewildered by the fact that his country had handed him over."

Three years later, after Al-Megrahi lost an appeal against his conviction, Mr Leslie escorted him to a helicopter that was to fly him from the Netherlands to Scotland.

Mr Leslie said: "The most satisfying aspect for me was the fact that having been at Lockerbie on the night it happened, the aftermath and then arresting him, reading the warrant over to him and getting the opportunity to look him in the eyes when he was sitting there in front of me.

"I got a lot of satisfaction out of that and I got a lot of satisfaction for the families, I think - the fact that justice was being brought to him.

Mr Leslie recently retired as divisional commander of Police Scotland in Dumfries and Galloway.

[RB: Further versions of this story can be read here and here.]

Dignitaries invited to Libya to witness handover of suspects

[What follows is the text of a report (based on material from The Associated Press news agency) published on the CNN website on this date in 1999:]

Arab dignitaries have been invited by Libya to witness the handover of two suspects in the 1988 Pan Am bombing, a further sign their promised extradition is imminent, an Arab League official said Sunday.

However, in Libya, secrecy has surrounded the operation and officials contacted by telephone have refused to divulge details about the much anticipated handover.

Arab diplomats said on Saturday that Libyan leader Col Moammar Gadhafi has ordered the passports of the two suspects returned to them.

Ahmed Ben Heli, the Arab League's Assistant Secretary-General said his delegation would fly later Sunday to the Tunisian airport of Jerba, from where they would be driven to the Libyan capital, Tripoli. Representatives from six Arab countries also would attend the handover to a United Nations representative, he said.

"It is good news for the Libyans -- indeed, for all Arabs -- that this quandary is finally over," Ben Heli told The Associated Press before leaving Cairo, site of the League's headquarters.

The move followed reports that the chief UN legal counsel, Hans Corell, had left for Europe on Friday on his way to Libya to arrange for the handover.

Lamen Khalifa Fhimah and Abdel Basset Ali al-Megrahi are to be tried under Scottish law in the Netherlands.

The December 21, 1988, bombing of the Pan Am jet over Lockerbie, Scotland, killed 270 people -- mostly Americans and Britons -- in the air and on the ground.

The two Libyans, allegedly former intelligence agents, were suspected of planting a suitcase bomb on the plane.

Ben Heli said he would represent the League's secretary-general, Esmat Abdel-Meguid, who could not make the trip because of other commitments.

The Algerian diplomat said the Libyan government also has invited foreign ministers of six Arab countries that formed a contact group set up by the League in 1992 to help negotiate an end to the crisis with the United States and Britain.

Egypt, a member of the group, has announced it is sending a senior minister. The other countries expected to send high-ranking officials were Syria, Morocco, Tunisia, Algeria and Mauritania.

Arab diplomats in Cairo said that Libya also has asked South Africa and the Organization of African Unity to send representatives.

After a decade of insistence that Fhimah, 42, and al-Megrahi, 46, be extradited to the United States or Britain for trial, the United States agreed in August to a trial in the Netherlands.

Libya said last month it would turn the men over on or before Tuesday.

Terms of the deal call for the UN Security Council to suspend sanctions imposed in 1992, including an air embargo, as soon as the suspects arrive in the Netherlands.