‘We’ll clear his name​’ says al-Megrahi’s son

[What follows is excerpted from a report in today’s edition of the Sunday Post:]

The son of Lockerbie bomber Abdelbaset al-Megrahi has said his family are ready to join the legal battle to clear his name.

According to Khaled al-Megrahi, his family are “ready to open” his father’s case.

A posthumous appeal against his dad’s controversial conviction was kicked out last year by legal chiefs who said the bid didn’t have the support of the al-Megrahi family.

But Khaled’s statement, posted yesterday on the Friends of Justice for Megrahi Facebook page, has given campaigners hope the family are set to ask for a fresh appeal to the conviction. (...)

Khaled said: “We are ready to open my father’s case, I speak behind my family and we believe my father is innocent.”

The Sunday Post has verified with sources close to the case that it was indeed al-Megrahi’s son who made the statement.

Campaigners have welcomed the development. Dr Jim Swire, who lost his daughter Flora in the 1988 disaster, said: “If the family are genuinely signing up to this the authorities will need to re-open the case.” (...)

Previously, campaigners had applied for the right to appeal in a bid to clear Al-Megrahi of one of the “worst miscarriages of justice in British legal history”.

But the Scottish Criminal Cases Review Commission – a Scottish Government body – rejected the application last November. It said it could not proceed without the input from al-Megrahi’s family.

Solicitor Aamer Anwar, who represents some of the victims of the tragedy and the Al-Megrahi family, said: “It is becoming clear that this is an unsafe conviction.

“At the time when the SCCRC rejected the case it was impossible for the al-Megrahi family to get involved due to the political turmoil in Libya.

“But now things are settling down in the country we can hopefully move forward and satisfy the paperwork requirements.”

Reacting to Khaled’s post, Reverend John Mosey – whose 19-year-old daughter Helga died in the bombing – wrote: “We are convinced your father is innocent and are working very hard to prove it.” (...)

In 2007, the SCCRC said there may have been a miscarriage of justice.

That decision paved the way for a second appeal. But that was dropped in 2009 just before al-Megrahi was released from jail by the Scottish Government on “compassionate grounds” due to his terminal cancer.

Al-Megrahi died in 2012 still claiming to be innocent.

Doomed to fail

[On this date in 2001, Abdelbaset al-Megrahi’s legal team lodged with the High Court of Justiciary the grounds of appeal against his conviction at Camp Zeist on 31 January 2001. A report on the BBC News website can be read here. These grounds were drafted in such a way that the appeal was doomed to fail (unlike the grounds of appeal prepared for second appeal which, had it not been abandoned to secure Megrahi's repatriation, would undoubtedly have succeeded). Here is what I have previously written about the first appeal:]

THE APPEAL
Introduction
Megrahi duly intimated his intention to appeal against his conviction. Pending the appeal he remained incarcerated in the Netherlands in HM Prison, Zeist. On 14 March 2002 the appeal was dismissed. An Opinion of the Court extending to 200 typed pages divided into 370 paragraphs was delivered[3]. The appeal was against conviction only: there was no attempt to challenge the recommendation, that a minimum of twenty years should be served before release was considered, which accompanied the trial court’s mandatory sentence of life imprisonment.

As required by the provisions of the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998, the Appeal Court consisted of five Lords Commissioners of Justiciary and sat in the premises of the Scottish Court at Camp Zeist in the Netherlands[4]. The hearing extended from 23 January to 14 February 2002. The proceedings (except when the evidence of witnesses was being heard) were televised live over the internet on a website maintained by the BBC, the first occasion in Scotland (or elsewhere in the United Kingdom) that live public broadcasting of judicial proceedings has been permitted. The consensus of opinion was that the administration of justice was not impaired by the presence of the television cameras, but that the level of excitement and drama was such that there is unlikely to be much clamour in the foreseeable future from either broadcasters or the viewing public for the experiment to be repeated.

The grounds of appeal
The only ground upon which a criminal appeal can succeed in Scotland is that there has been a miscarriage of justice. In the Note of Appeal lodged on behalf of Megrahi there were set out in 21 paragraphs (many of them subdivided) the grounds upon which, individually or in combination, it was contended that a miscarriage had occurred. One of those grounds related to the existence and significance of evidence which was not heard during the original proceedings. This evidence related to a breach of security at Heathrow Terminal 3 (potentially giving access to the baggage build-up area) the night before Pan Am 103 departed from that terminal on its fatal flight. The Appeal Court allowed the new evidence to be led before it, but ultimately concluded that it could not be regarded as possessing such importance as to have been likely to have had a material bearing on the trial court’s determination of the critical issue of whether the suitcase containing the bomb was launched on its progress from Luqa Airport in Malta (an essential plank in the prosecution case) or from Heathrow. This ground of appeal was accordingly rejected.

As far as the appeal based on the remaining twenty paragraphs of the written grounds of appeal was concerned, its failure appears to have been rendered virtually inevitable by two concessions made in the course of argument by the appellant’s counsel. The first of these, as recorded in the Opinion of the Court (paragraph 4) is as follows:

“At the trial it was not submitted on the appellant’s behalf that there was insufficient evidence in law to convict him. In its judgment the trial court rejected parts of the evidence relied upon by the Crown at the trial. Nevertheless, it was not contended in the appeal that those parts of the evidence not rejected by the trial court did not afford a sufficient basis in law for conviction.”

The second concession is recorded in the following terms (paragraph 5):

“Under subsection (3) [of s106 of the Criminal Procedure (Scotland) Act 1995] an appellant may bring under review of the High Court:

‘any alleged miscarriage of justice, which may include such a miscarriage

based on –

(b) the jury’s having returned a verdict which no reasonable jury, properly

directed, could have returned.’ …

Mr Taylor, who appeared for the appellant, expressly disavowed any reliance on para (b).”

The importance of these concessions is emphasised by the Appeal Court in the penultimate paragraph of its Opinion (paragraph 369):

“When opening the case for the appellant before this court Mr Taylor 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. 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 issues that the appeal did not address
The limitations under which the Appeal Court was thus constrained to operate effectively disabled it from considering the issues of (a) whether there was sufficient evidence in law to justify such absolutely crucial findings-in-fact by the trial court as (i) that the date of purchase in Malta of the clothes surrounding the bomb was 7 December 1988, (ii) that Megrahi was the purchaser and (iii) that the case containing the bomb started its progress from Malta’s Luqa Airport and (b) whether those findings or any of them (on the assumption that there was a legal sufficiency of evidence) were such as no reasonable trial court, properly directing itself, could have made, or been satisfied of beyond reasonable doubt, in the light of (i) justifiable criticisms of the evidence and witnesses supporting them and (ii) ex facie credible contrary evidence.

The issues that the appeal did address
What the appellant instead invited the Appeal Court to do was to hold that various findings-in-fact made by the trial court (a) were based upon a misunderstanding of the evidence or were without a basis in the evidence; or (b) were arrived at by giving undue weight to evidence that supported them or insufficient weight or “proper regard[5]” to evidence that contradicted them; or (c) were in the nature of inferences from primary facts drawn in situations where other, non-incriminating, inferences were equally open.

As regards (a) the Appeal Court held that in two or three instances the trial court had found a fact proved on the basis of a misunderstanding of the evidence led, or where there was no evidential basis for the finding. But in each such case the Appeal Court went on to decide that the error was insignificant, could not have affected the ultimate outcome of the case and, hence, was not such as to give rise to a miscarriage of justice.

As regards (b) and (c) the Appeal Court insisted that, as long it was (as here) not contended that no reasonable trial court could have made the finding-in-fact, challenge of findings on these grounds was simply not competent. The weight to be given to evidence or the “proper regard” to be accorded to it were matters entirely for the trial court, as was the question of what inferences to draw from the primary facts that it held proved. Even where, as here, the tribunal of fact was not an inscrutable jury but a bench of judges who gave reasons for their findings, the Appeal Court was simply not entitled to substitute its own views for those of the trial judges. It followed that all of the grounds of appeal directed towards issues of “weight” or “proper regard” fell to be rejected as raising matters not within the competence or powers of the Appeal Court. This is emphasised at various points in the Opinion of the Court[6] but principally in the section headed “The function of an appeal court.[7]”

Conclusion

Before the verdicts in the original trial were delivered, I expressed the view [on TheLockerbieTrial.com website edited by Ian Ferguson and me]  that for the judges to return verdicts of guilty they would require (i) to accept every incriminating inference that the Crown invited them to draw from evidence that was on the face of it neutral and capable of supporting quite innocent inferences, (ii) to be satisfied beyond reasonable doubt that the Maltese shopkeeper, Tony Gauci, positively identified Megrahi as the person who bought from his shop in Sliema the clothes and umbrella contained in the suitcase that held the bomb and (iii) to accept that the date of purchase of these items was proved to be 7 December 1988 (as distinct from 23 November 1988 when Megrahi was not present on Malta). I went on rashly to express the opinion that, for the judges to be satisfied of all these matters on the evidence led at the trial, they would require to adopt the posture of the White Queen in Through the Looking-Glass, when she informed Alice "Why, sometimes I've believed as many as six impossible things before breakfast." In convicting Megrahi, it is submitted that this is precisely what the trial judges did.

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.

Until such time as an appellate court (perhaps on a reference from the Scottish Criminal Cases Review Commission) is required to address the fundamental issues of (i) whether there was sufficient evidence to warrant the incriminating findings, (ii) whether any reasonable trial court could have made those findings (and could have been satisfied beyond reasonable doubt of the guilt of Megrahi) on the evidence led at Camp Zeist and (iii) whether Megrahi’s representation at the trial and the appeal was adequate, I will continue to maintain that a shameful miscarriage of justice has been perpetrated and that the Scottish criminal justice system has been gravely sullied.

3. Al Megrahi v H M Advocate 2002 SCCR 509, available at http://www.scotcourts.gov.uk/docs/default-source/sc---lockerbie/lockerbieappealjudgement.pdf?sfvrsn=2

4. The High Court (Proceedings in the Netherlands) (United Nations) Order 1998, SI 1998 No 2251, art 14(1), (2) available at www.hmso.gov.uk/si/si1998/19982251.htm

5. "Proper regard" is an expression used frequently in the written grounds of appeal.

6. For examples of grounds of appeal being rejected on this basis, see Opinion of the Court, paras 76, 80, 84, 118, 129, 262, 274, 288, 327, 351.

7. See Opinion of the Court, paras 20-27.

Fundamental principles were ignored

[What follows is the text of a report published on the website of The Guardian on this date in 2002 (and in the print edition of the newspaper the following day):]

The prison visitor arrived at Barlinnie mid-morning in a flurry of cars and police outriders. He bypassed the bleak waiting room with its metal benches and chipped linoleum and was led, without being searched, straight to a suite of cells deep within the grim Victorian fortress on Glasgow's eastern edge.

The inmate he had come to see greeted him with a handshake. They sat and talked for more than an hour. The statesman and the convicted mass killer: Nelson Mandela and the Lockerbie bomber.

For Mr Mandela, it was a defining experience. Emerging to talk to the press, the former South African president called immediately for a fresh appeal and for Abdel Baset al-Megrahi to be transferred from Britain to a Muslim prison. The Libyan's solitary confinement in Scotland's toughest jail was nothing short of "psychological persecution", he said. And too many questions had been raised about his conviction to let the matter rest. An urgent meeting would be sought with both Tony Blair and the US president, George Bush, to plead Megrahi's case.

Mr Mandela, 83, has long been troubled by Lockerbie. He played a crucial role in persuading the Libyan leader, Colonel Muammar Gadafy, to hand over the two men suspected of involvement in the 1988 atrocity which left 270 people dead, and has followed events closely. Last week he announced he intended to travel to Glasgow to check on Megrahi's welfare.

Megrahi faces 20 years in isolation in Barlinnie after his conviction at the Scottish court in the Netherlands. His co-defendant, Al-Amin Khalifah Fhimah, was acquitted. The Libyan, who does not have to slop out like other prisoners and has access to kitchen facilities and an interpreter, told Mr Mandela that staff treated him well but he had been taunted by other inmates when he exercised.

"Megrahi is all alone," Mr Mandela said afterwards. "He has nobody he can talk to. It is a psychological persecution that a man must stay for the length of his long sentence all alone. It would be fair if he transferred to a Muslim country - and there are Muslim countries which are trusted by the west. It will make it easier for his family to visit him if he is in a place like the kingdom of Morocco, Tunisia or Egypt.

"He says he is being treated well by the officials but when he takes exercise he has been harassed by a number of prisoners. He cannot identify them because they shout at him from their cells through the windows."

Composed and often jovial, Mr Mandela refused to say whether he believed Megrahi to be innocent or to criticise the Scottish judicial system directly. "My belief is irrelevant," he said.

But he listed criticisms of the judgment which led to Megrahi's jailing, including the views of a four-judge commission from the Organisation of African Unity: "This is what other legal men, other judges are saying of this judgment. They have criticised it ferociously and it will be a pity if no court reviews the case itself. From the point of view of fundamental principles of natural law, it would be fair if he is given a chance to appeal either to the privy council or the European court of human rights."

Earlier, Megrahi's lawyer, Eddie MacKechnie, said new information had come to light about an alleged payment of $11m by the government of Iran to the Popular Front for the Liberation of Palestine General Command two days after the bombing. "We have interviewed twice a former CIA officer who has given us details of the payment; times, dates, and bank accounts," he said. "My concern is not simply that there is evidence of such payment, but whether that information was available to any British authorities."

Megrahi's defence team is pursuing a hearing at the European court of human rights which will be launched in Strasbourg in September.

Back inside Barlinnie, Mr Mandela said he did not regret his efforts to bring Megrahi to trial. "No. Why should I regret?" he said. "I got involved in the Lockerbie trial because there was a deadlock. And I intervened because I was thinking first of the relatives of the victims, that they must see justice done - but justice done according to the fundamental principles of law. It does appear from what the judges have said that these fundamental principles were ignored."

But his continued involvement in the case has upset some of the relatives. Susan Cohen of New Jersey, who lost her daughter Theodora, said Mr Mandela's visit to Barlinnie was "an attempt to make Megrahi appear to be the victim".

Mr Mandela said he had hoped to meet the relatives during his visit but time had been too short: "I am coming back here in July and it is my intention to visit Scotland and speak to all the victims of Lockerbie."

It was not strange for him to visit a prison, he said. His own 27 years of incarceration had been leavened by access to other inmates and a full library.

"Our minds were occupied every day with something positive, something productive," he said. "It is difficult for me to believe that I was in jail for 27 years because it seems to have gone very fast."

A deadly myth

[On this date five years ago Consortium News published a long article by American investigative journalist Robert Parry headlined Three Deadly War Myths. The section headed The Libyan Myth reads as follows:]

Today’s third deadly myth is Washington’s certainty that Libyan dictator Gaddafi was responsible for the Pan Am 103 attack and thus must be removed from power by force and possibly by assassination.

The alternative option of taking Gaddafi up on his offers of a cease-fire and negotiations toward a political settlement has been rejected out of hand by both the Obama administration and by nearly all the influential pundits in Washington, in part, because of the Pan Am case.

Repeatedly citing Gaddafi’s killing of Americans over Lockerbie, the US debate has centered on the need to ratchet up military pressure on Gaddafi and even chuckle over NATO’s transparent efforts to murder the Libyan leader (and his family members) by bombing his homes and offices.

The Obama administration is sticking with this violent course of action even though Libyan civilians continue to die and the cutoff of Libyan oil from the international markets has exacerbated shortages in supplies, thus contributing to the higher gas prices that are damaging the US economic recovery.

But President Obama apparently sees no choice. After all, the conventional wisdom is that Gaddafi is guilty in the Pan Am 103 case. All the leading US news organizations, such as The New York Times, and prominent politicians, such as Sen John McCain, say so.

“The blood of Americans is on [Gaddafi’s] hands because he was responsible for the bombing of Pan Am 103,” declared Sen McCain, R-Arizona, after an early trip to rebel-held Benghazi.

However, the reality of the Pan Am case is much murkier – and some experts on the mystery believe that Libyans may have had nothing to do with it.

It is true that in 2001, a special Scottish court convicted Libyan agent Ali al-Megrahi for the bombing. But the judgment appears to have been more a political compromise than an act of justice. Another Libyan was found not guilty, and one of the Scottish judges told Dartmouth government professor Dirk Vandewalle about “enormous pressure put on the court to get a conviction." [RB: The High Court information officer, Elizabeth Cutting, has denied that this ever happened.]

Megrahi’s conviction assuaged the understandable human desire to see someone punished for such a heinous crime, albeit a possibly innocent man.

In 2007, after the testimony of a key witness against Megrahi was discredited, the Scottish Criminal Cases Review Commission agreed to reconsider the conviction as a grave miscarriage of justice. However, that review was proceeding slowly in 2009 when Scottish authorities released Megrahi on humanitarian grounds, after he was diagnosed with terminal prostate cancer.

Megrahi dropped his appeal in order to gain the early release, but that doesn’t mean he was guilty. He has continued to assert his innocence and an objective press corps would reflect the doubts regarding his curious conviction.

The Scottish court’s purported reason for finding Megrahi guilty – while acquitting his co-defendant Lamin Khalifa Fhimah – was the testimony of Toni Gauci, owner of a clothing store in Malta who allegedly sold Megrahi a shirt, the remnants of which were found with the shards of the suitcase that contained the bomb.

The rest of the case rested on a theory that Megrahi put the luggage on a flight from Malta to Frankfurt, where it was transferred to a connecting flight to London, where it was transferred onto Pan Am 103 bound for New York, a decidedly unlikely way to undertake an act of terrorism given all the random variables involved.

Megrahi would have had to assume that three separate airport security systems – at Malta, Frankfort and London – would fail to give any serious scrutiny to an unaccompanied suitcase or to detect the bomb despite security officials being on the lookout for just such a threat.

As historian William Blum recounted in a Consortiumnews.com article after Megrahi’s 2001 conviction, “The case for the suitcase’s hypothetical travels must also deal with the fact that, according to Air Malta, all the documented luggage on KM180 was collected by passengers in Frankfurt and did not continue in transit to London, and that two Pan Am on-duty officials in Frankfurt testified that no unaccompanied luggage was introduced onto Pan Am 103A, the feeder flight to London.”

There also were problems with Gauci’s belated identification of Megrahi as the shirt-buyer a decade after the fact. Gauci had made contradictory IDs and had earlier given a physical description that didn’t match Megrahi. Gauci reportedly received a $2 million reward for his testimony and then moved to Australia, where he went into retirement.

In 2007, the Scottish review panel decided to reconsider Megrahi’s conviction after concluding that Gauci’s testimony was unbelievable. And without Gauci’s testimony, the case against Megrahi was virtually the same as the case against his co-defendant who was acquitted.

However, after Megrahi’s conviction in 2001, more international pressure was put on Libya, which was then regarded as the archetypal “rogue” state. Indeed, it was to get onerous economic sanctions lifted that Libya took “responsibility” for the Pan Am attack and paid reparations to the victims’ families even as Libyan officials continued to deny guilt.

In April, there was some excitement over the possibility that Gaddafi would be fingered personally as the Pan Am 103 mastermind when former Libyan foreign minister Moussa Koussa defected. He was believed to be in charge of Libyan intelligence in 1988 and thus almost certainly in the know.

Moussa Koussa was questioned by Scottish authorities but apparently shed little new light on the case. He was allowed to go free after the interview. Very quickly the press interest over Moussa Koussa faded away, except for the recurring assumption in some Western press articles that he must have implicated Gaddafi.

Despite the doubts about the Pan Am 103 case — and the tragic human and economic toll from the Libyan war – the US news media and politicians continue to treat Libya’s guilt as a flat fact. It appears that no big-time journalist or important official has even bothered to read the Scottish court’s bizarre judgment regarding Megrahi’s 2001 conviction.

Instead, NATO’s bombing campaign against Libyan targets continues, including the recent leveling of tents where Gaddafi greets foreign dignitaries and the destruction of Libyan TV.

Rather than making war policies based on serious factual analysis, the United States and NATO continue to be guided by politically pleasing myths. It is a recipe for an even-greater disaster and unnecessary deaths.

Justice Committee membership

The Scottish Parliament has today agreed the membership of its various committees as proposed by the political parties represented there. The new Justice Committee (which continues to have Justice for Megrahi’s petition on its work list) consists of the following MSPs:

Margaret Mitchell (Con), Douglas Ross (Con), Oliver Mundell (Con), Mary Fee (Lab), Liam McArthur (LibDem), John Finnie (Green), Rona Mackay (SNP), Mairi Evans (SNP), Ben Macpherson (SNP), Fulton MacGregor (SNP), Stewart Stevenson (SNP).

Only Margaret Mitchell and John Finnie were members of the Justice Committee in the last Parliament. It had already been announced that the convener of this committee would be one of the Conservative members.

The scope of the prisoner transfer agreement

[What follows is excerpted from a report published in The Guardian on this date in 2007:]

Scotland's justice secretary today labelled as "ludicrous" Westminster's claim that a prisoner exchange agreement with Libya did not cover the Lockerbie bomber.

Kenny MacAskill poured scorn on Downing Street's insistence that a memorandum of understanding signed last week during a trip by Tony Blair to Libya did not apply to Abdelbaset Ali Mohmed al-Megrahi.

Alex Salmond, Scotland's first minister, has protested to Tony Blair over the agreement, which he suggested could lead to the Lockerbie bomber being transferred from Scotland to his homeland.

The SNP leader made an emergency statement in the Holyrood parliament complaining that "at no stage" had he been made aware of a British-Libyan agreement on extradition and prisoner release before it was signed.

The agreement has sparked the first major row between the government and the minority SNP administration in Holyrood.

Mr MacAskill told BBC Radio's Good Morning Scotland that Westminster's handling of the affair was "at minimum, discourteous to the first minister and the Scottish parliament".

Mr MacAskill continued: "There's no mention of al-Megrahi [in the memorandum] but we have many people in our prisons ... but we have only one Libyan national in our prisons.

"So when we're talking about the transfer of Libyan prisoners they are not secreted in Barlinnie, Saughton, Perth or anywhere else.

"We have only one Libyan national in custody and when we talk about the transfer of prisoners, frankly it is ludicrous to suggest that we are talking in a context other than this major atrocity that was perpetrated on Scottish soil and which was dealt with by a Scottish court and with a sentence provided by Scottish judges." (...)

No 10 denied Megrahi's case was covered by the document, saying: "There is a legal process currently under way in Scotland reviewing this case which is not expected to conclude until later this summer.

"Given that, it is totally wrong to suggest the we have reached any agreement with the Libyan government in this case.

"The memorandum of understanding agreed with the Libyan government last week does not cover this case."

But Mr MacAskill rejected any suggestion that the agreement would only apply to the transfer of al-Qaida suspects.

He said: "We haven't been given clarification [by Downing Street].

"All we've been told is that a memorandum of understanding has been signed.

"Mr al-Megrahi is not specifically excluded. It refers to the transfer of prisoners so this is London's interpretation of it.

"I doubt it very much if it's the interpretation being placed upon it by the government of Libya."

[RB: Here is something previously written by me on this matter:]

It was on [29 May] 2007 that the “deal in the desert” was concluded between Prime Minister Tony Blair and Colonel Gaddafi at a meeting in Sirte. This was embodied in a “memorandum of understanding” that provided, amongst other things, for a prisoner transfer agreement to be drawn up. In later years UK Government ministers, particularly Justice Secretary Jack Straw, sought to argue either (i) that the prisoner transfer element of the deal was not intended to apply to Abdelbaset Megrahi or (ii) that if it was intended to cover him, all parties appreciated that the decision on transfer would be one for the Scottish Government not the UK Government. Here is what I wrote about that on this blog:

According to Jack Straw "the Libyans understood that the discretion in respect of any PTA application rested with the Scottish Executive." This is not so. In meetings that I had with Libyan officials at the highest level shortly after the "deal in the desert" it was abundantly clear that the Libyans believed that the UK Government could order the transfer of Mr Megrahi and that they were prepared to do so. When I told them that the relevant powers rested with the Scottish -- not the UK -- Government, they simply did not believe me. When they eventually realised that I had been correct, their anger and disgust with the UK Government was palpable. As I have said elsewhere:

"The memorandum of understanding regarding prisoner transfer that Tony Blair entered into in the course of the "deal in the desert" in May 2007, and which paved the way for the formal prisoner transfer agreement, was intended by both sides to lead to the rapid return of Mr Megrahi to his homeland. This was the clear understanding of Libyan officials involved in the negotiations and to whom I have spoken.

"It was only after the memorandum of understanding was concluded that [it belatedly sunk in] that the decision on repatriation of this particular prisoner was a matter not for Westminster and Whitehall but for the devolved Scottish Government in Edinburgh, and that government had just come into the hands of the Scottish National Party and so could no longer be expected supinely to follow the UK Labour Government's wishes. That was when the understanding between the UK Government and the Libyan Government started to unravel, to the considerable annoyance and distress of the Libyans, who had been led to believe that repatriation under the PTA was only months away.

“Among the Libyan officials with whom I discussed this matter at the time were Abdulati al-Obeidi, Moussa Koussa and Abdel Rahman Shalgam.”

The positioning of the Lockerbie bomb

[What follows is the text of an article by Steve James that was published on WSWS.org on this date in 2000:]

Testimony in the trial of the two Libyans accused of blowing up Pan Am Flight 103 in 1988 has deepened speculation regarding the bomb's location in the airplane and exposed divisions among the original air accident investigators.

Last week, prosecution witnesses robustly defended their view that the bomb that brought down the Boeing 747 over the Scottish town of Lockerbie, killing 259 passengers and crew as well as 11 local residents, had been in luggage container AVE 4041. The prosecution maintains that the two Libyan defendants, Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah, had loaded a suitcase containing the bomb onto a feeder flight in Malta, which was then transferred onto Flight 103 at Frankfurt. This scenario rests on the assumption that the bomb was located inside a suitcase. If it was not, then the prosecution's charges against the two Libyans is in danger of collapse

Peter Claydon, one of the Air Accident Investigation Bureau (AAIB) team looking into the disaster, explained that investigators came to the conclusion the bomb was in a suitcase after studying the pattern of damage to container AVE 4041 and the rest of the surrounding aircraft. Blast damage was most concentrated around the rear quarter of the container, beside the aircraft's hull. Claydon, pressed by the prosecution lawyers, stated several times that he was certain that the "event" took place inside the container. He disagreed with a defence suggestion that damage to the neighbouring container, AVN 7511PA, pointed to the blast occurring outside AVE 4041. He also stated that he thought the luggage item containing the explosive was not on the floor of the container, as the floor showed signs of having been protected from the direct effects of the blast by another piece of luggage. He explained how he found a tiny charred fragment of a circuit board lodged in the container's marker plate.

Claydon's testimony was followed by that of Ian Cullis, an explosives expert, and Christopher Peel, both from the UK's Defence Research Establishment (DERA). Their names do not appear on the list of contributors to the initial AAIB report. Cullis claimed that the sooting of the container remains, and pitting in both the fuselage and container, showed that the explosion had taken place inside the container. He said that deformations of the container floor again pointed to another piece of luggage having been forced into the floor by a blast above it. Peel, who has subsequently worked on a research project into the effects of small bombs on pressurised aircraft, narrated a video on the results of this work, which including exploding 450g of plastic explosive inside a Boeing 747. He claimed that using complex mathematical calculations, he could accurately place the bomb inside the luggage container.

Defence lawyer Richard Keen QC said to Peel, "You have not simply developed an analytical model, but gone back and altered your view of the facts in order to apply the analytical model."

Later, during three days of cross-examination, Peel admitted to Alan Turnbull QC that an earlier calculation put the bomb 17 inches from the aircraft hull, rather than the 24 inches currently suggested by Peel, and other analytical models suggested a distance of as little as 12 inches.

The three investigators' evidence directly contradicts analyses made by another prosecution witness, Edmund Bollier of MEBO AG, the Swiss electronics firm who manufactured the timer alleged to have triggered the explosion. Bollier has claimed in two reports that the bomb was attached directly to the aircraft's hull.

Bollier's claims were strengthened by the testimony of accident investigator Christopher Protheroe, who was a member of the AIIB team along with Claydon.

The 1990 report from the AAIB team [https://www.gov.uk/aaib-reports/2-1990-boeing-747-121-n739pa-21-december-1988] was quite clear in locating the bomb inside container AVE 4041, reassembled from fragments scattered around the Scottish countryside. But Protheroe admitted in court that there had been a significant mathematical error in the official report of the accident. According to his examination of the "Mach stem" effect used to calculate blast wave effects after an initial explosion, correct calculations would place the bomb 12 inches from the fuselage and therefore outside luggage container AVE 4041. After Protheroe's testimony the court adjourned so the remains of the shredded container could be assembled inside the courtroom.

The recent resignation of the head of Glasgow University's Lockerbie Trial Briefing Unit, Andrew Fulton, following his exposure as a long-standing MI6 operative points to the US and UK intelligence services maintaining an acute interest in Pan Am 103 from the moment it crashed until the present trial. The Briefing Unit was set up in late 1998 to provide "impartial" advice on the legal aspects of the Lockerbie trial and has been contacted by many representatives of the world's media. Fulton, a British diplomat for 30 years, had been MI6 station chief in Washington DC in his last position. He was appointed to the unit 18 months ago as a "visiting law professor", despite his complete lack of legal experience. He was placed in charge of press briefings and controlled the flow of information from the unit.

Lockerbie affair still has scope for embarrassment

[This is the headline over a letter from Keith Howell published in today’s edition of The Herald. It reads as follows:]

As a former convener of Holyrood's Justice Committee, SNP MSP Christine Grahame must have known the answer she would get in calling on the First Minister to change the Government's view on the Abdelbaset Ali Mohmed al-Megrahi conviction given the revelations in Kenny MacAskill's book (“Grahame in plea over al-Megrahi”, The Herald, June 3). Presumably Ms Grahame was just wanting to draw attention to the case again, yet some would have preferred she had not given the murky deals involved here any more publicity.

The First Minister was right to say that it is not the Government's place to question decisions of the court, but equally her political instincts will be telling her to not get embroiled in an example of dirty politics that none comes out of well, including the SNP.

It is highly questionable whether someone who so recently held office as Justice Secretary should publish the political equivalent of a kiss-and-tell, but what Mr MacAskill has to say on the al-Megrahi affair is neither clear cut nor without scope for great embarrassment to the SNP Government.