Neutral venue Lockerbie trial inches closer

[What follows is taken from House of Lords Hansard for this date in 1998:]

HL Deb 30 July 1998 vol 592 cc1618-20 3.27 pm

Lord Steel of Aikwood asked Her Majesty's Government:

Whether they will consider making arrangements for an international venue to try the two persons accused of the Lockerbie disaster under Scottish law in a neutral country.

The Lord Advocate (Lord Hardie) My Lords, although I remain committed to a trial in Scotland, I can confirm that I have considered alternative ways of securing my objective of bringing the accused to justice. We are currently involved in discussions of a highly complex nature and full consideration must be given to all the legal and technical aspects of such an initiative before a final decision can be made. It would be quite inappropriate for me to say any more at this time. I can assure the House that any steps that I take will be in accordance with my independent responsibility to discharge my duty as prosecutor.

Lord Steel of Aikwood My Lords, I should like to give a very warm welcome to the tone of the noble and learned Lord's Answer; indeed, it is the first sign of flexibility on the issue after nearly 10 years since the disaster occurred over Lockerbie. Will the noble and learned Lord at least recognise that there are many people who believe that if the authorities remain obdurate on this question there might never be a trial and we would never discover the truth of what happened at Lockerbie?

Will the noble and learned Lord accept that there is international unease at this stalemate and that the bereaved families themselves are pressing for the solution that I have put forward in this Question? Will he also recognise that citizens of some 13 nations were killed in this disaster, but that if the bomb had gone off either 10 minutes or 10 minutes later it would not have been in Scottish jurisdiction? If ever there was a major international crime, this was one.

Lord Hardie My Lords, I fully recognise all the points made by the noble Lord as I was involved in the Lockerbie incident from the outset. I was junior to the noble and learned Lord, Lord Fraser of Carmyllie, when he was Lord Advocate, at the public inquiry.

I am fully aware of the concerns of the families but the primary consideration for me must be to ensure a proper trial in accordance with Scots law in Scotland. If that cannot be achieved, other considerations will be taken into account. However, the overriding consideration must be to ensure that whatever arrangements are made do not interfere with the ability of the prosecution to conduct the case without any prejudice, nor to interfere with the interests of the defence, and that both of those interests are safeguarded. If those conditions cannot be met, I shall not prosecute anywhere other than in Scotland.

Lord Fraser of Carmyllie My Lords, many of us in this House will be reassured by the noble and learned Lord's repeated and proper preference for a trial in Scotland of those accused of the Lockerbie murders. We strongly support his reassertion of his primacy in this matter as the independent public prosecutor in Scotland with a lonely responsibility and not a collective one. We offer that support particularly in the light of the clumsy, constitutionally improper and badly leaked efforts of the Foreign Office to usurp the noble and learned Lord.

If he takes an irreversible step to hold the trial outside Scotland—we understand why he might wish to contemplate that, given the decade of agony and uncertainty that the relatives of the victims of Flight Pan Am 103 have endured—I hope he will understand that, in spite of our understanding of why he is possibly looking to a way forward, we must reserve the right to scrutinise whether any agreement he reaches brings the prospect of a trial closer or whether it merely offers the opportunity for endless further wrangling from Tripoli.

Lord Hardie My Lords, I welcome the comments of the noble and learned Lord about the lonely office of Lord Advocate. I can assure the noble and learned Lord that I share his concerns about the press speculation as to what has been going on. I have been assured by the Foreign and Commonwealth Office that it is not responsible for such leaks. In relation to the scrutiny of the agreement, if any agreement is reached the terms of that agreement and any necessary orders will, of course, be made available to your Lordships for consideration. I repeat that my sole consideration is to ensure that the prosecution of the accused is in accordance with Scots law and will take place preferably in Scotland. It will not take place outwith Scotland unless my two criteria are satisfied. I referred to those criteria when answering the noble Lord, Lord Steel of Aikwood.

Lord Mackay of Drumadoon My Lords, I refer to the proceedings before the International Court of Justice raised by Libya against the United Kingdom and the United States. I seek the noble and learned Lord's assurance that, in reaching his decision on whether the trial may take place overseas, he will have regard to the existence of that litigation because there may be an argument that it would be highly undesirable for the noble and learned Lord the Lord Advocate to agree that the trial should be held in the Hague, or anywhere else, if at the same time Libya continues the action it has raised against this country and America.

Lord Hardie My Lords, the proceedings before the International Court of Justice are effectively civil proceedings relating to the interpretation of the Security Council resolutions and the applicability of the Montreal Convention. I am fully aware that these proceedings are continuing. At the present time I am involved in drafting and revising pleadings for the next stage. If a criminal trial were to take place either in Scotland or outwith Scotland, there may well be a case for making an application to the court to assist these proceedings, but that is further down the line.

Lord Steel of Aikwood My Lords, I assure the noble and learned Lord the Lord Advocate that I fully respect the integrity and independence of his office and welcome everything he has said this afternoon. Will he confirm that the Security Council resolution on this subject refers to a trial either in Scotland or the United States? Accordingly, in arriving at his future conclusions, will the noble and learned Lord confirm that he is in touch with his opposite numbers in Washington?

Lord Hardie My Lords, as I have indicated, there have been detailed, complex negotiations which have involved myself with people of equivalent standing in other countries and officials. Clearly I am aware of the existence of the Security Council resolutions. The existence of those resolutions will be taken into account in any agreement, should agreement be reached.

Lord Selkirk of Douglas My Lords, does the noble and learned Lord the Lord Advocate accept that calls which have been made in the past to Lord Advocates that evidence in this case should be revealed in advance of a trial are totally inappropriate and could be prejudicial to the accused?

Lord Hardie My Lords, I thank the noble Lord for those comments. It is not the practice of the Lord Advocate ever to disclose evidence other than in the course of a trial. I do not accept that it would be appropriate to disclose the evidence while there is the prospect of a trial.

A deliberate perversion of justice

What follows is an item first published on this blog seven years ago on this date:

Rewards for Justice

The Sunday Post, the Scottish Sunday newspaper with the largest readership, published the following article by Adam Docherty about payment to witnesses in the Lockerbie trial on 13 January 2008:

'The US justice department paid for evidence that helped convict Abdel Basset Ali al-Megrahi for the Lockerbie bombing.

'With the next hearing in Megrahi's High Court Appeal due to take place next month, the admission casts a dark shadow over testimony at the original trial -- and the safety of the conviction.

'The Washington DC-based 'Rewards for Justice' organisation boasts that it has paid out more than 72 million dollars to over 50 people who have provided information that prevented international terrorist attacks or have brought to justice those involved in prior acts. Included on its website, in a list of those brought to justice, is Megrahi. Due to a strict policy of confidentiality Rewards for Justice will not name the witnesses nor divulge the exact amount paid to them.

'In June last year the Scottish Criminal Cases Review Commission referred Megrahi's case back to the Court of Appeal after a three-year inquiry. They found six areas of concern and are believed to have uncovered a £2-million reward paid by the CIA to key witness, Maltese shopkeeper Tony Gauci.

'Gauci was the only witness to link Megrahi directly to the bomb, and was therefore instrumental in convicting him on 31 January 2001. Gauci told the trial that Megrahi bought clothes in his shop, which were later used to wrap the bomb.

'At the trial, Gauci appeared uncertain about the exact date he sold the clothes in question, and was not entirely sure that it was Megrahi to whom they were sold. Nonetheless, Megrahi's appeal against conviction was rejected by the Scottish Court in the Netherlands in March 2002. Five years after the trial, former Lord Advocate, Lord Fraser of Carmyllie, publicly described Gauci as being "an apple short of a picnic" and "not quite the full shilling".

'Dr Jim Swire, whose daughter Flora was killed in the 1988 bombing, is convinced that Megrahi is innocent. Yesterday he said that such huge sums offered to witnesses could encourage them to perjury.

'"Many jurists would consider that promises of money to secure 'evidence' from any individual do not accord with the principles of justice," he explained.

'"It is the timing of such promises rather the payments themselves that determine whether the 'evidence' is likely to be degraded. To many such witnesses such sums would alter their lives.

'"And such promises of money, if concealed from court -- or perhaps divulged only to prosecution -- could be considered a deliberate perversion of justice.

'"Witnesses are supposed to serve the truth. But the old Scots adage holds firm here - 'He who pays the piper calls the tune'.

'"This document gives some idea of the scale of the payments. It also removes any doubt as to whether payments were, indeed, made in this case."

The newspaper also published an article containing Dr Swire's detailed reactions to the revelations. These included the following:

'I entered the Zeist trial believing (as the British Foreign secretary had told us) that there was conclusive evidence of Libya's guilt, and none concerning the guilt of any other nation.

'This was the reason that we, the UK relatives, had made every conceivable effort, including three visits to Colonel Gaddafi, to persuade him to allow his citizens to undergo trial under Scottish criminal justice.

'Within days of the start of the trial at Zeist it became clear that fundamental requirements for the collection of evidence for a criminal trial had been breached, when the court was told that a suitcase, belonging to one of the US passengers had been removed from the crash site, by persons unknown, cut open, and then returned for the Scottish searchers to find, with some of its contents put back and even labelled with the name of the owner.

'The court accepted that the rectangular cutting into that suitcase could not have been a result of the explosion, but appeared unfazed by the possible implications for other items allegedly recovered as evidence. This had intense relevance later in the case to the question of a fragment of timer circuit board, the key forensic 'link' to the credibility of the bomb ever having started from Malta.

'There was evidence of the presence of numerous unidentified US agents roaming the site at a very early stage - a situation which the resources of the Scottish police could never have been expected to anticipate or control.

'From this unhappy start, the picture grew of how certain intelligence agencies had contributed to the assembly of much of the evidence. Intelligence services act in support of the perceived advantage of the countries for which they work: this may or may not be consistent with seeking the truth.

'Remember that for this trial there was no jury.

'Now, as you report, we have the proud exhibition by 'Rewards for Justice' in Washington DC of their use of 'more than 72 million dollars' in persuading witnesses to give evidence in terror-related cases. Former Lord Advocate, Lord Fraser of Carmyllie's, post trial assessment of the key witness, Mr Gauci, as being 'one apple short of a picnic' was not vouchsafed to the court, but can only serve now to emphasize the possibility that an offer of cash might have affected the evidence that Mr Gauci was willing to give.

'As a layman, I emerged from the Zeist hearings convinced that the verdict should never have been reached.'

Tam Dalyell: The Megrahi I know

The website of The Times runs an opinion piece by Tam Dalyell, former MP and Father of the House of Commons, which will again presumably appear in Saturday's print edition. Here is part of it:

'My deep conviction, as a “professor of Lockerbie studies” over a 20-year period is that neither al-Megrahi nor Libya had any role in the destruction of Pan Am 103.

'I believe they were made a scapegoat in 1990-91 by an American government that had decided to go to war with Iraq and did not want complications with Syria and Iran, which had harboured the real perpetrators of the terrible deed. Libya and its “operatives”, Al-Amin Khalifa Fhimah (al-Megrahi's co-accused) and al-Megrahi, only came into the frame at a very late date. In my informed opinion, al-Megrahi has been the victim of one of the most spectacular (and expensive) miscarriages of justice in history. (...)

'Visiting him in prison, I was struck by his self-possession - a self-possession that had struck many people at his trial, possibly because it never occurred to him that he would be found guilty. It explains my passionate involvement over 20 years, as well as that of Robert Black, professor emeritus of Scots law at the University of Edinburgh. It was on our say-so that Libya ever surrendered its citizens to Scottish justice. Whatever happens to al-Megrahi, faced with advanced terminal cancer, the case will continue because on trial is the international reputation of Scottish justice and particularly of the Crown Office...

'Almost the last thing that al-Megrahi said to me was: “Yes, of course I want to go back to Tripoli. I have my wife and my five children are growing up, but I want to go back an innocent man.”

'Some of us are determined to find the truth and justice that we believe will find him innocent.'

On 6 November 2008, The Times printed the following "clarification":

'In Tam Dalyell's article in last Saturday's Times “A civilised, caring man - not a mass murderer”, Mr Dalyell claimed that the prosecution in the Lockerbie case had lied to Lord Coulsfield, the High Court judge, when it told the trial court at Camp Zeist that it had full confidence in the evidence of the Maltese shopkeeper, Tony Gauci. Mr Dalyell's claim was based on reported comments made by a previous Lord Advocate, Lord Fraser of Carmyllie, that Mr Gauci was an unreliable witness who was “not the full shilling”. The present Lord Advocate has asked us to point out that Lord Fraser made it clear in 2005 that he did not have any reservations about any aspect of the prosecution, and had no aspersions to cast on Tony Gauci's evidence and, therefore, that there is no substance to the serious allegation in the article that the Crown had lied to the court about its confidence in the evidence of Tony Gauci.'

It should be noted that there is, and could be, no denial that Lord Fraser of Carmyllie used the words attributed to him by Tam Dalyell.

Peter Fraser pins colours to the mast

In an article in The Times, the Lord Advocate at the time that charges were brought against Abdelbaset Megrahi and Lamin Fhimah for the destruction of Pan Am 103, Lord Fraser of Carmyllie QC, expresses his confidence in the evidence that led to the conviction of Megrahi. Here are excerpts:

'Lord Fraser does not discount the involvement of other states, but he points out that no definitive evidence has been produced to link them to the attack. The Libyans, on the other hand, were traced through the diligence of Scottish detectives, who managed to identify the manufacturers of clothing found in the suspect suitcase that had held the bomb. By proving that the clothing had been bought in Malta, and then establishing that the purchaser was al-Megrahi, they laid the foundations of the Crown case. “For me that was the most significant breakthrough,” Lord Fraser says now.'

'Tam Dalyell, the former MP, has argued that the CIA may have known about the attack beforehand. Lord Fraser rejects that. “I told Tam Dalyell: if there was a conspiracy, then I am in it up to the neck. I have to be involved. The only other possibility is that I have been so naive that bits of evidence have been planted, and I have swallowed it hook, line and sinker. But four other Lord Advocates have also examined the evidence and they have all concurred with it.”'

On the issue of the provenance of the MST-13 circuit board fragment which was crucial to the establishment of a link between Libya and the destruction of the aircraft, Lord Fraser hedges his bets somewhat:

'The discovery of a fragment of circuit board from a timer made by a Swiss company with links to Libya was critical to the prosecution. But accounts of how, where and by whom it was found varied. The original fragment was found several miles from the wreckage, and some weeks after the disaster.

'It was not until very much later that the CIA claimed to have identified it and matched it with a circuit board manufactured by Mebo of Zurich, a company run by Edwin Bollier, who had supplied timers to the Libyan Government. Some experts have argued that the find was just a bit too convenient to the US investigators, since, by targeting the Libyans, they could avoid falling out with Iran and Syria, important allies at the time of the Gulf War. So could the CIA have planted the evidence? “I don’t know,” says Lord Fraser. “No one ever came to me and said, ‘Now we can go for the Libyans’, it was never as straightforward as that. The CIA was extremely subtle. For me the significant evidence came when the Scottish police made the connection with Malta.” Pressed for his own view, he cites a Scottish murder case, that of Patrick Meehan, in which, it was alleged, the prosecution case had been “improved” by the planting of evidence. Was there a similarity? “I don’t know,” he said again, “but if there was one witness I was not happy about, it was Mr Bollier, who was deeply unreliable.”'

Police cannot substantiate Malta-Frankfurt unaccompanied baggage

[What follows is the text of a report headlined Warning of media risk to Lockerbie disaster prosecution that was published in The Herald on this date in 1989:]

The protection of any possible prosecution over the bombing of the PanAm flight that came down in Scotland last December was paramount, Lord Fraser of Carmyllie, the Lord Advocate said yesterday when he called for restraint in reporting the Lockerbie criminal investigation.

He disclosed in a statement that reports about unaccompanied luggage having gone from Malta to Frankfurt “let alone unaccompanied baggage with a bomb in it” could not be substantiated by the Scottish police officer leading the inquiry.

Lord Fraser said in Edinburgh that he was deeply concerned and disturbed that reporting could reach a point which seriously jeopardised not only the international investigation but also any future court proceedings.

“It must be kept in mind that this is the largest mass murder investigation in recent times in Britain and it is incumbent upon us all to exercise restraint in the interests of justice,” he said.

“We all owe it to the 270 victims who perished as a result of the bombing of PanAm 103 and, just as importantly, the bereaved relatives, that the perpetrators are brought to justice,” he said.

“It is most important that this is not lost sight of, as speculative reporting causes dismay and distress to them.”

Lord Fraser's call follows intense reporting of the matter in recent days on both sides of the Atlantic.

He said that he had frequently made it clear that his prime concern, indeed his only concern, was the integrity of the investigation, which he said was being very methodically and skilfully conducted by the Lockerbie team under the direction of the chief constable.

“The purpose of the investigation is not simply to establish that there was a web of opportunity for those determined to commit this appalling terrorist outrage and assault on the sovereignty of the United States, but to identify those who did it and how they did so to a standard of proof to satisfy a criminal court,” he said.

“As Lord Advocate, I have to say our essential purpose is put at risk if premature disclosure shuts off lines of enquiry or puts potential witnesses under threat,” he stated.

Lord Fraser said that he had also noted considerable “ill-informed and inaccurate speculation” in relation to the Federal German Police and other international agencies.

“I want to make it quite clear that the degree of international co-operation in this case has been unprecedented and we would certainly not have reached the stage we are at had this not been the case,” he said.

“The Chief Constable of Dumfries and Galloway, Mr George Esson, has told me that he cannot substantiate reports about unaccompanied luggage having gone from Malta to Frankfurt let alone unaccompanied baggage with a bomb in it,” Lord Fraser said.

[RB: The Frankfurt Airport computer printout saved by Bogomira Erac that led the Zeist court to conclude (wrongly, it seems) that there had been an item of unaccompanied baggage from Malta was disclosed to the Scottish police by the German Bundeskriminalamt (BKA) in August 1989: see John Ashton, Megrahi: You are my Jury, pages 106-109. It is therefore a little difficult to understand why Peter Fraser should have chosen to go public in November 1989 with this statement.]

Megrahi and Libya “were made a scapegoat”

[On this date in 2008 The Times printed a “clarification”. What follows is part of the article by Tam Dalyell to which it related, followed by the clarification itself:]

My deep conviction, as a “professor of Lockerbie studies” over a 20-year period is that neither al-Megrahi nor Libya had any role in the destruction of Pan Am 103.

I believe they were made a scapegoat in 1990-91 by an American government that had decided to go to war with Iraq and did not want complications with Syria and Iran, which had harboured the real perpetrators of the terrible deed. Libya and its “operatives”, Al-Amin Khalifa Fhimah (al-Megrahi's co-accused) and al-Megrahi, only came into the frame at a very late date. In my informed opinion, al-Megrahi has been the victim of one of the most spectacular (and expensive) miscarriages of justice in history. (...)

Visiting him in prison, I was struck by his self-possession - a self-possession that had struck many people at his trial, possibly because it never occurred to him that he would be found guilty. It explains my passionate involvement over 20 years, as well as that of Robert Black, professor emeritus of Scots law at the University of Edinburgh. It was on our say-so that Libya ever surrendered its citizens to Scottish justice. Whatever happens to al-Megrahi, faced with advanced terminal cancer, the case will continue because on trial is the international reputation of Scottish justice and particularly of the Crown Office...

Almost the last thing that al-Megrahi said to me was: “Yes, of course I want to go back to Tripoli. I have my wife and my five children are growing up, but I want to go back an innocent man.”

Some of us are determined to find the truth and justice that we believe will find him innocent.

The clarification

In Tam Dalyell's article in last Saturday's Times “A civilised, caring man - not a mass murderer”, Mr Dalyell claimed that the prosecution in the Lockerbie case had lied to Lord Coulsfield, the High Court judge, when it told the trial court at Camp Zeist that it had full confidence in the evidence of the Maltese shopkeeper, Tony Gauci. Mr Dalyell's claim was based on reported comments made by a previous Lord Advocate, Lord Fraser of Carmyllie, that Mr Gauci was an unreliable witness who was “not the full shilling”. The present Lord Advocate has asked us to point out that Lord Fraser made it clear in 2005 that he did not have any reservations about any aspect of the prosecution, and had no aspersions to cast on Tony Gauci's evidence and, therefore, that there is no substance to the serious allegation in the article that the Crown had lied to the court about its confidence in the evidence of Tony Gauci.

[RB: It should be noted that there was, and could be, no denial that Lord Fraser of Carmyllie used the words attributed to him by Tam Dalyell.]

Key Lockerbie evidence "unsafe" claims MSP

[What follows is the text of a press release and note to editors from Christine Grahame MSP.]

Scottish police investigators did not make the key piece of evidential material used to convict Abdelbaset al Megrahi, the man convicted of the Lockerbie bombing, secure an SNP MSP has claimed. Christine Grahame MSP has said the Crown Office has now confirmed to her that the fragment was taken to Germany and then to the US by Scottish investigating officers without the knowledge of the Defence team and more crucially the then Lord Advocate, Lord Fraser of [Carmyllie], the senior prosecutor at the time of the investigation.

In an interview for Dutch TV yet to be shown on UK television Lord Fraser was asked if the fragment, known as PT-35 (alleged to be part of the bomb’s timer) had always remained in the UK. Lord Fraser responded:

“As far as I’m aware it’s always been in the UK.”

Asked if it had ever been to the United States, Lord Fraser responds:

“Not that I’m aware of,” adding that he would have known if it had left the UK, telling Dutch reporters: “What would have gone through my mind is, I’m not accusing the FBI or anything… [but] could this evidence get lost, or damaged or tampered with? No, no I would want to keep everything so that there can be no accusations at a trial that in some way [the fragment] has been fiddled with.”

Now SNP MSP Christine Grahame has confirmed that the same fragment also went to Germany two months before being sent across the Atlantic to Washington without, it seems, the knowledge of the Lord Advocate and the Crown Office. Ms Grahame herself a former lawyer, also claims Scottish police investigators did not record the fragment’s transportation across the world and in doing so broke the vital chain of evidence undermining the integrity of the fragment. She said:

“The Crown Office have confirmed to me that the fragment, PT-35, the piece of evidence that it was claimed by prosecutors linked Libya to the attack was also sent to Germany in April 1990 as well as the US.

“On the 22nd of June 1990 it was then taken to the FBI lab in Washington for examination by FBI officials there. Lord Fraser makes it clear he did not know and would not have allowed this evidence to be taken out of Scottish jurisdiction and control, but that is precisely what did happen. That leaves a very serious question mark over the central piece of evidence used to convict Mr Megrahi."

The senior Scottish police investigator involved in the case, retired Detective Chief Superintendent Stuart Henderson told Dutch journalists last December,

“We couldn’t afford to let something like that go. It has never been in their [US] control at all. It couldn’t be, because it was such an important point of evidence it wasn’t possible to release it. It had to be contained to be produced at the court therefore you couldn’t afford to have it waved around for everyone to see it because it could have got interfered with.”

“But that is precisely what appears to have happened,” Ms Grahame said and separately confirmed she has seen additional documents yet to be made public that showed DCS Henderson had told Crown prosecution officials in a formal legal statement that the fragment had indeed been to the US. Ms Grahame added:

“I am not sure why DCS Henderson’s statements made separately to Dutch TV and to the Crown Office contradict each other so starkly. That is a matter for Mr Henderson to explain. Either this fragment was in the US or it was not.

“I am deeply concerned that during the investigation and indeed leading all the way up to the Trial that neither the Crown nor Megrahi’s Defence were ever made aware that this crucial piece of evidence was being ‘waved around for everyone to see’ as DCS Henderson put it.

“Questions also need to be answered about the associated evidence log that was meant to accompany PT-35. It mysteriously does not record that the fragment went to the US or Germany, even though the Crown Office has confirmed in writing that it definitely went to Germany."

Note to editors:

The Crown Office responding to a Freedom of Information request from Ms Grahame stated:
“PT 35 was taken to the Siemens company in Munich, Germany in April 1990 by Scottish police officers.”

Now retired FBI Senior Investigating Officer Richard Marquise confirmed to Ms Grahame’s office last week that, “PT-35, the actual fragment, came to the US one time, in June 1990 in the possession of a Scottish police officer and Feraday (Alan Feraday of the UK forensic explosives laboratory, RARDE).”

DCS Henderson, the Senior Scottish Police Investigator in an interview with Dutch documentary makers VPRO stated: “[the fragment] was in his (Alan Feraday, RARDE) possession and my possession but it was never released for anybody to hold it… they (the FBI) came to where we had it to see it because it wasn’t possible to remove any evidence out of the jurisdiction of the Scottish control.”

In his precognition statement given to Scottish Crown prosecutors DCS Henderson confirms that on the 22nd of June 1990 Henderson, accompanied by Chief Inspector McLean, DI Williamson and Alan Feraday from RARDE took the fragment to the US and “Met in Washington with metropolitan field officers of the FBI and Thomas Thurman.” The FBI’s Thomas Thurman was the officer who later claimed to have identified the fragment and the link to Libya, but later retired from the FBI following accusations by colleagues that he had [altered] forensic reports related to other criminal murder investigations.

[A report on the issue on the BBC News website can be read here. A radio interview with Christine Grahame can be heard here.

What follows is the text of a Crown Office press release:

"There is absolutely nothing new in this misleading story. Contrary to what is being claimed by Ms Grahame, the fact that the fragment of MST-13 timer known as PT 35 was taken to West Germany in 1990 by Scottish police officers was known to Mr Megrahi's defence team prior to his trial and indeed was presented to the Court by the Crown as evidence in the trial. During the trial Hans Brosamle of Siemens was called as a Crown witness and described examining PT 35 in Munich to the Court. Mr Megrahi's defence team did not dispute during the trial, after analysis by their own experts, that the fragment was part of an MST-13 timer.

"At no time during the investigation was the timer fragment ever outside the custody and control of the Scottish police officers, or forensic scientists at the Royal Armament Research and Development Establishment (RARDE)."

It will be noticed that this response does not address (a) the issue of the transfer of the fragment to the United States; (b) the issue of the then Lord Advocate's ignorance of the movement of the fragment out of the UK; and (c) his reasons for stating that no such movements should have occurred. Nor does it explain why the "chain of custody" label attached to the fragment appears not to record these movements.]

Fragments of truth

[This is the heading over an article in the current issue of the magazine Scottish Left Review by Mark Hirst, Parliamentary Adviser to Christine Grahame MSP. The full article can (and should) be read here. The following are excerpts.]

Earlier this year I met with the man convicted of the worst terrorist atrocity in British history. Now back in Libya to await a verdict from a ‘higher court’, terminally ill Abdelbaset al Megrahi steadfastly maintains his innocence in the murder of 270 people over Lockerbie in December 1988. Many professionals involved in the case including US intelligence officers, legal experts and police investigators also share his view, in spite of the concerted propaganda efforts by vested interests in the Crown Office, FBI and US Justice and State Departments. Yet for reasons still to be fully explained by Megrahi, his Defence or the Scottish Government, in August this year he dropped his second appeal and a week later Scottish Justice Secretary Kenny MacAskill released him on compassionate grounds. That decision resulted in a hysterical reaction from representatives of some of the US relatives and somewhat half-hearted condemnatory slogans from the Obama led US Government.

Megrahi was not required to drop his appeal in order to qualify for compassionate release. He subsequently claimed in a newspaper interview after his return to Libya that no pressure was placed on him to do so. So why did he? When I, along with MSP Christine Grahame, met with him his focus had been very much on the detail of the case and the new evidence that would be led during his second appeal. But he made it clear that his priorities had changed since discovering he was terminally ill last year. His over-riding objective was to return to Libya and to see his family before he died. He understood fully why some, mostly UK victim’s relatives, were keen to see the appeal continue, but told us it would not take them any closer to the truth and who was ultimately responsible for the deaths of their relatives.

Megrahi literally was running out of time and was deeply concerned that he would, as he put it very directly, return to Libya in a wooden box in the hold of a cargo plane. I believe he was genuinely supportive of the need of relatives of victims to get to the ‘truth’, but those efforts were not going to bring him any closer to his family in Libya before he died. His faith in Scottish justice and the legal process he had been subjected to was understandably low. “If they have a brave judge who looks and says ‘good or bad’, ‘yes or no’, but I doubt that the chair of the judges, who chairs all the other judges in Scotland, will turn around and say that all the other judges [at the trial and the first appeal] before got it wrong.” Megrahi said, before adding, “They will want to show, to keep the integrity of the system, that they don’t care if they have to keep an innocent man in prison to do that.”

The integrity in the Scottish legal system, whether it deserves it or not, is right at the heart of this issue, because that is what is at stake if the complete truth behind this case emerges and that is why very prominent vested interests are even now working hard to close the case down. The latest spurious police investigation being just one example that will ensure no independent inquiry takes place any time soon. (…)

The message to Megrahi, whether made explicitly or not, appears to have persuaded him to drop his 18-year fight to clear his name. That view was confirmed when his defence counsel Maggie Scott QC addressed the High Court in August to confirm Megrahi was indeed dropping his appeal. Scott stated that her client believed that this action would “assist in the early determination of those applications”. Applications, plural. The link was made explicitly. Ultimately Megrahi was led to believe by vested interests in our own legal establishment that his only chance of returning home was by dropping his second appeal and to leave his family name forever associated with the bombing of Pan Am 103. That outcome is a scandal that will haunt the Scottish legal system in particular, for decades to come.

So was there a conspiracy? Perhaps, but there certainly has been a cover-up which is very much ongoing. A cover-up of the weakness of the evidence, the weakness of the criminal investigation and a cover-up of the shameful conclusions reached by three Scottish judges at the trial. (…)

Earlier this year Dutch filmmaker Gideon Levy completed an award-winning documentary, still to be shown in the UK, that proves that the then-Lord Advocate, Lord Fraser of [Carmyllie] was unaware that the crucial fragment used to link Libya to the attack went to the United States FBI lab for examination. It now transpires it also went to West Germany, although despite recent Crown Office claims that movement was not explicitly made during the trial. Levy’s film includes interviews with the chief prosecutor in the case, Lord Fraser, the FBI’s Senior Investigating Officer Richard Marquise and Robert Baer who for 30 years worked in the Middle East Directorate of the CIA and was a senior US intelligence operative. What emerges during the course of Levy’s film is the staggering revelation that this crucial evidence was not properly secured by Scottish police and should never have gone to the US. The importance of this piece of evidence cannot be [overstated]. Marquise states that without the fragment, known as PT-35, there would have been no indictment, let along conviction of Megrahi.

Lord Fraser, who brought the original indictments against Megrahi is then asked if he was aware that PT-35 had ever been to the US. “Not to my knowledge... I would not have permitted this as it was important evidence that could have been lost in transit, or tampered with or lost,” He is then shown the interview with Marquise, who confirms the fragment did go to the US before the trial. Fraser responds; “Well this is all news to me”. Later in the film Levy challenges Marquise to clarify whether PT-35 was taken to the US without the knowledge of the Lord Advocate. Standing next to him is retired Detective Chief Superintendent Stuart Henderson, the senior Scottish investigating officer in the case. Marquise initially seems confused over whether PT-35 was taken to Washington, contradicting his earlier on-camera interview, before Henderson interrupts and states categorically that the fragment was never in the US. “It was too important to be waved around”, Henderson states. “It was never in the US, it was never out of Scottish control. They [The FBI] came to the UK to see it, but it was never in the US.” After filming Marquise emailed Levy to “clarify” and confirm that PT-35 was indeed in the US and apologised for the earlier confusion. It is clear that if Marquise did not understand the significance of PT-35s foreign movements then Stuart Henderson clearly did.

What has not yet been made public, until now, is that Stuart Henderson states in his precognition statement that he gave to the Crown, ahead of Megrahi’s second appeal, that the fragment, PT-35 definitely did go the US. Henderson states that on the 22nd of June 1990 he travelled to the US with the fragment accompanied by Chief Inspector McLean, DI Williamson and Alan Feraday of RARDE, the forensic explosives laboratory in Kent. According to Henderson’s statement to the Crown they met with Metropolitan Field Officers of the FBI and Thomas Thurman, the FBI official who, it is claimed later ‘identified’ the origin of the fragment. Thurman has a degree in political science and has no relevant formal qualifications in electronics or any other scientific field.

I have also seen one of the crucial productions that was to be led during Megrahi’s second appeal which is the official log that accompanied PT-35 and is meant to record each movement of the evidence in order to protect the evidential chain. At each point it is signed for by the relevant police officer. This is an extremely important process and is meant to ensure the chain of evidence is not broken. There is no entry in this log recording that PT-35 ever went to the US, at any point. That has to cast serious doubts over its integrity in light of Henderson’s precognition statement and the confirmation from the FBI’s Dick Marquise that the fragment was in the US prior to the trial.

His faith in Scottish justice was understandably low

What follows is an item first posted on this blog on this date five years ago:

Fragments of truth

[This is the heading over an article in the current issue of the magazine Scottish Left Review by Mark Hirst (...) The full article can (and should) be read here. The following are excerpts.]

Earlier this year I met with the man convicted of the worst terrorist atrocity in British history. Now back in Libya to await a verdict from a ‘higher court’, terminally ill Abdelbaset al Megrahi steadfastly maintains his innocence in the murder of 270 people over Lockerbie in December 1988. Many professionals involved in the case including US intelligence officers, legal experts and police investigators also share his view, in spite of the concerted propaganda efforts by vested interests in the Crown Office, FBI and US Justice and State Departments. Yet for reasons still to be fully explained by Megrahi, his defence or the Scottish Government, in August this year he dropped his second appeal and a week later Scottish Justice Secretary Kenny MacAskill released him on compassionate grounds. That decision resulted in a hysterical reaction from representatives of some of the US relatives and somewhat half-hearted condemnatory slogans from the Obama led US Government.

Megrahi was not required to drop his appeal in order to qualify for compassionate release. He subsequently claimed in a newspaper interview after his return to Libya that no pressure was placed on him to do so. So why did he? When I, along with MSP Christine Grahame, met with him his focus had been very much on the detail of the case and the new evidence that would be led during his second appeal. But he made it clear that his priorities had changed since discovering he was terminally ill last year. His over-riding objective was to return to Libya and to see his family before he died. He understood fully why some, mostly UK victim’s relatives, were keen to see the appeal continue, but told us it would not take them any closer to the truth and who was ultimately responsible for the deaths of their relatives.

Megrahi literally was running out of time and was deeply concerned that he would, as he put it very directly, return to Libya in a wooden box in the hold of a cargo plane. I believe he was genuinely supportive of the need of relatives of victims to get to the ‘truth’, but those efforts were not going to bring him any closer to his family in Libya before he died. His faith in Scottish justice and the legal process he had been subjected to was understandably low. “If they have a brave judge who looks and says ‘good or bad’, ‘yes or no’, but I doubt that the chair of the judges, who chairs all the other judges in Scotland, will turn around and say that all the other judges [at the trial and the first appeal] before got it wrong.” Megrahi said, before adding, “They will want to show, to keep the integrity of the system, that they don’t care if they have to keep an innocent man in prison to do that.”

The integrity in the Scottish legal system, whether it deserves it or not, is right at the heart of this issue, because that is what is at stake if the complete truth behind this case emerges and that is why very prominent vested interests are even now working hard to close the case down. The latest spurious police investigation being just one example that will ensure no independent inquiry takes place any time soon. (…)

The message to Megrahi, whether made explicitly or not, appears to have persuaded him to drop his 18-year fight to clear his name. That view was confirmed when his defence counsel Maggie Scott QC addressed the High Court in August to confirm Megrahi was indeed dropping his appeal. Scott stated that her client believed that this action would “assist in the early determination of those applications”. Applications, plural. The link was made explicitly. Ultimately Megrahi was led to believe by vested interests in our own legal establishment that his only chance of returning home was by dropping his second appeal and to leave his family name forever associated with the bombing of Pan Am 103. That outcome is a scandal that will haunt the Scottish legal system in particular, for decades to come.

So was there a conspiracy? Perhaps, but there certainly has been a cover-up which is very much ongoing. A cover-up of the weakness of the evidence, the weakness of the criminal investigation and a cover-up of the shameful conclusions reached by three Scottish judges at the trial. (…)

Earlier this year Dutch filmmaker Gideon Levy completed an award-winning documentary, still to be shown in the UK, that proves that the then-Lord Advocate, Lord Fraser of [Carmyllie] was unaware that the crucial fragment used to link Libya to the attack went to the United States FBI lab for examination. It now transpires it also went to West Germany, although despite recent Crown Office claims that movement was not explicitly made during the trial. Levy’s film includes interviews with the chief prosecutor in the case, Lord Fraser, the FBI’s Senior Investigating Officer Richard Marquise and Robert Baer who for 30 years worked in the Middle East Directorate of the CIA and was a senior US intelligence operative. What emerges during the course of Levy’s film is the staggering revelation that this crucial evidence was not properly secured by Scottish police and should never have gone to the US. The importance of this piece of evidence cannot be [overstated]. Marquise states that without the fragment, known as PT-35, there would have been no indictment, let along conviction of Megrahi.

Lord Fraser, who brought the original indictments against Megrahi is then asked if he was aware that PT-35 had ever been to the US. “Not to my knowledge... I would not have permitted this as it was important evidence that could have been lost in transit, or tampered with or lost,” He is then shown the interview with Marquise, who confirms the fragment did go to the US before the trial. Fraser responds; “Well this is all news to me”. Later in the film Levy challenges Marquise to clarify whether PT-35 was taken to the US without the knowledge of the Lord Advocate. Standing next to him is retired Detective Chief Superintendent Stuart Henderson, the senior Scottish investigating officer in the case. Marquise initially seems confused over whether PT-35 was taken to Washington, contradicting his earlier on-camera interview, before Henderson interrupts and states categorically that the fragment was never in the US. “It was too important to be waved around”, Henderson states. “It was never in the US, it was never out of Scottish control. They [The FBI] came to the UK to see it, but it was never in the US.” After filming Marquise emailed Levy to “clarify” and confirm that PT-35 was indeed in the US and apologised for the earlier confusion. It is clear that if Marquise did not understand the significance of PT-35s foreign movements then Stuart Henderson clearly did.

What has not yet been made public, until now, is that Stuart Henderson states in his precognition statement that he gave to the Crown, ahead of Megrahi’s second appeal, that the fragment, PT-35 definitely did go the US. Henderson states that on the 22nd of June 1990 he travelled to the US with the fragment accompanied by Chief Inspector McLean, DI Williamson and Alan Feraday of RARDE, the forensic explosives laboratory in Kent. According to Henderson’s statement to the Crown they met with Metropolitan Field Officers of the FBI and Thomas Thurman, the FBI official who, it is claimed later ‘identified’ the origin of the fragment. Thurman has a degree in political science and has no relevant formal qualifications in electronics or any other scientific field.

I have also seen one of the crucial productions that was to be led during Megrahi’s second appeal which is the official log that accompanied PT-35 and is meant to record each movement of the evidence in order to protect the evidential chain. At each point it is signed for by the relevant police officer. This is an extremely important process and is meant to ensure the chain of evidence is not broken. There is no entry in this log recording that PT-35 ever went to the US, at any point. That has to cast serious doubts over its integrity in light of Henderson’s precognition statement and the confirmation from the FBI’s Dick Marquise that the fragment was in the US prior to the trial.

“Not entirely happy with the evidence against Megrahi”

[It was on this date ten years ago that The Sunday Times published its notorious “an apple short of a picnic” article. Here it is, in its full glory:]

Fraser: my Lockerbie trial doubts

The former Conservative minister described Tony Gauci, the Maltese shopkeeper whose testimony was central in securing a conviction against Abdelbasset Ali Mohmed al-Megrahi, as “not quite the full shilling” and “an apple short of a picnic”.

[Peter] Fraser [Lord Fraser of Carmyllie QC], who as Scotland’s senior law officer was responsible for indicting Megrahi, says he is now not entirely happy with the evidence against Megrahi during his trial in 2001 and in his subsequent appeal.

While making clear that this does not mean that he believes Megrahi was innocent of the 1988 atrocity, in which 270 people were killed, Fraser said he should be free to leave Scotland to serve the remainder of his sentence in Libya.

His intervention is the most significant yet in a series of developments that have cast doubt on the safety of the conviction against Megrahi.

Pan Am flight 103 blew up over Lockerbie on December 21, 1988 after an explosion in the cargo hold. Megrahi was sentenced to 27 years following a trial presided over by three Scottish judges in the Netherlands. A condition of his sentence was that he served the full term in Scotland. His co- accused, Al-Amin Khalifa Fhimah, was cleared.

Lawyers acting for the former intelligence officer and head of security for Libyan Arab Airlines have since claimed to have uncovered anomalies suggesting that vital evidence presented at the trial came from tests conducted months after the terror attack. The new evidence is due to be presented in an appeal to the Scottish Criminal Cases Review Commission next year.

Earlier this month it was reported that officials from Britain, America and Libya had met to discuss moving Megrahi back to Libya on the condition that the appeal is dropped.

A key plank in the case against Megrahi was provided by Gauci who claimed that he sold Megrahi clothes that were believed to have been wrapped around the bomb. Fraser said that he believes Gauci was a “weak point” in the case and has expressed concern that he was a “simple” man who might have been “easily led”.

“Gauci was not quite the full shilling. I think even his family would say (that he) was an apple short of a picnic. He was quite a tricky guy, I don’t think he was deliberately lying but if you asked him the same question three times he would just get irritated and refuse to answer,” he said.

“You do have to worry, he’s a slightly simple chap, are you putting words in his mouth even if you don’t intend to?” Fraser said he has been invited to Tripoli to meet Colonel Gadaffi after the Libyan leader learnt of his views but, so far, he has declined.

“I wasn’t particularly impressed with his defence. Their techniques of muddle and confusion can work for a jury but it doesn’t work for three judges,” he said.

Fraser said he believes that Megrahi should now be free to return to his native Libya to see out the remainder of his sentence.