A blast from the past

[On this date in 2000 the Lockerbie trial at Camp Zeist, which had begun on 3 May, was adjourned until 11 July. I posted on The Lockerbie Trial website, edited by Ian Ferguson and me, the following summary of what could be regarded as having been established by the evidence at the time of the adjournment.]

Apart from graphically setting the scene by establishing that Pan Am 103 was destroyed over Lockerbie and that 270 people were killed as a result, how far does the evidence led to date go towards establishing the case set out in the indictment against the two accused persons? 

On the assumption that the witnesses who have so far given evidence which is favourable to the Crown case are accepted by the judges as being credible (ie honest and truthful) and reliable (ie accurate in their observation and recollection of events) -- and in the light of defence challenges in cross-examination regarding eg the accuracy of record keeping, the provenance of certain crucial items of wreckage (where, when and by whom they were found; through whose hands they thereafter passed) and the competence and neutrality of certain expert witnesses, judicial acceptance of the credibility and reliability of witnesses cannot be regarded as a foregone conclusion -- it is possible that the following might be held to have been provisionally established, always subject to any later contrary evidence which may be led by the prosecution or the defence.

1.  That the seat of the explosion was in a particular Samsonite suitcase (which contained clothing manufactured in Malta and sold both there and elsewhere) at or near the bottom of a particular aluminium luggage container (AVE 4041).

2.  That the bomb had been contained in a black Toshiba RT SF 16 cassette recorder.

3.  That a fragment of circuit board from an MST-13 timer manufactured by MeBo AG formed part of the timing mechanism which detonated the bomb.

4.  That MeBo AG supplied MST-13 timers to the Libyan army, as well as to other customers such as the East German Ministerium für Staatssicherheit (Stasi).

5.  That the first-named accused, Abdelbaset Ali Mohmed al-Megrahi, was known to the owners of MeBo AG;  that he was involved, in an official capacity (possibly as a member of the Libyan intelligence services), in obtaining for Libya electronic equipment (including timers) from MeBo;  and that a company of which he was a principal for a time had accommodation in the premises occupied by MeBo in Zurich.

6.  That the first-named accused possessed and used Libyan passports in false names.

7.  That the first-named accused, on occasion under the false name of Ahmed Khalifa Abdusamad, visited Malta on a number of occasions in 1988, including the night of 20/21 December.

No evidence has as yet been led to attempt to establish (a) that the Samsonite suitcase containing the bomb was launched on its fatal progress from Malta (as distinct from being directly loaded onto Pan Am 103 at Heathrow, or starting its journey at Frankfurt) or (b) that the clothing in the suitcase was purchased in Malta by either of the accused.  It is when the prosecution advances evidence on these two matters that it will be possible to say that evidence which is positively incriminatory of the accused has been led.  That stage has not yet been reached; but it is anticipated that it is with the chapter of evidence relating specifically to these matters that the trial will reconvene on 11 July 2000.

A Scottish show trial has descended into farce

[This is the headline over an article by physicist and former Church of Scotland minister Dr John Cameron in today’s edition of the Scottish Review. It reads in part:]

The Sunday Herald has posted on its website the legal grounds found by the Scottish Criminal Cases Review Commission for Abdelbaset al-Megrahi's second appeal. There was, of course, a clear public interest in making the report available and we have a right to know the nature of the SCCRC reservations and why it reached its conclusions.

It does not answer all the troubling questions which emerged in the wake of the atrocity, the investigation and the trial but it certainly casts doubt on the fairness of the verdict. Within months of the verdict three figures initiated a long protest: Dr Jim Swire (who lost his daughter), Hans Köchler (UN observer at the trial) and Nelson Mandela. Today there is hardly anyone north of the border who is not uneasy and the appeal has the support of the Kirk, the Catholic Church and the law faculties of the Scottish universities. It is also worth noting that not only his fellow prisoners but also the staff at Greenock prison believed he was innocent – usually a sign that something is seriously wrong.

The SCCRC document (a statement of reasons) sets out the grounds for referral back to the appeal court, four of which refer to the non-disclosure of evidence to the defence. This includes the main prosecution witness Tony Gauci having seen a magazine article and photograph linking Megrahi to the crime before making his 'positive' identification. There was also grave concern that Gauci knew the US would reward him with $2 million for 'successful' testimony and severe doubts about the clothing and the purchaser. A fifth reason covered 'secret' intelligence documents not seen by Megrahi's legal team while the sixth referred to new evidence on the date of clothes purchased in Malta.

I was disappointed but not surprised the commission took the forensic evidence at face value and ignored the warning of the distinguished criminal lawyer, Michael Mansfield. As he rightly says: 'Forensic science is not immutable and the biggest mistake that anyone can make is to believe that its practioners are somehow beyond reproach. Some of the worst miscarriages of justice in British legal history have come from cases in which the forensic science was later shown to have been grossly misleading'. There is, in fact, a 'canteen culture' in forensic science which encourages officers to see themselves as part of the prosecuting team rather than investigators seeking the truth.

In recent years no forensic-based case has caused greater concern than the Lockerbie trial and the prosecution has been widely accused of using the tactics of disinformation. The lead prosecutor was the lord advocate, Colin (later Baron) Boyd, who three years before had prosecuted the detective Shirley McKie in another forensic-based disaster. She was later compensated with £750,000 by the Scottish Executive after a botched trial based on faulty forensic evidence (...)

The involvement of the prosecuting team in the earlier fiasco to say nothing of severe doubts about the Lockerbie forensics is surely a matter of concern. The Crown Office said it had 'every confidence in successfully defending the conviction', but as Mandy Rice-Davies said at another trial, 'They would say that, wouldn't they'.

In fact the author of a magisterial study of the Lockerbie evidence, John Ashton, said it is clear the revelations have caused huge embarrassment for the judiciary. The trial was memorable for the performance of Fhimah's counsel, Richard Keen, dean of the Faculty of Advocates and one of the most brilliant legal minds of his generation. When I read his cross-examination of the forensic team of Thomas Hayes and Allen Feraday I thought as a professional physicist that he had shredded their credibility.

Edwin Bollier, who Keen scornfully and repeatedly referred to as 'a legitimate Swiss businessman', gave evidence about the timer which was shown to be pure fantasy. Keen then proceeded to demolish both Tony Gauci and Majid Giaka to such an extent that no-one in the court could be in any doubt that Lamin Fhimah had no case to answer. What I found beyond belief was that evidence which was judged farcical in the case of Fhimah was later accepted as plausible by the law lords in the case of Megrahi.

Having been involved in the appeal for many years, I would say my greatest doubts as a scientist involve the highly dubious theory that the bomb entered the system in Malta. Not only is there no evidence whatsoever an unaccompanied suitcase was secreted onto flight KM180, but Air Malta had won a libel action in 1993 establishing that it was not.

The Maltese police have always protested that this was a most unlikely scenario and the senior airport baggage loader was adamant that he always double-counted his luggage. This reliable official counted his luggage when it was finally gathered and again when it was physically loaded onto the plane and was certain there was no extra case. In fact, the idea of unaccompanied baggage with a bomb rattling around Europe before finding its way onto Pan Am 103 in London has always been widely ridiculed. The excellent screening at Frankfurt would almost certainly have picked it up and the theory added the further complication of requiring a non-barometric timer be used.

The interline baggage hall at Heathrow was notoriously insecure and John Bedford, a loader-driver employed by Pan Am had already told police of suspicious activity. He had placed a number of cases in the baggage container AVE 4041 for the flight but returned from a tea break to find a distinctive brown Samsonite case had been added. Sulkash Kamboj of the Pan Am affiliate Alert Security who told Bedford that he added the case, initially denied this to the police before finally admitting his involvement at the trial.

Whatever happens, it is a matter of the most profound regret that this Scottish show trial in the full glare of the international community has been allowed to descend into farce.

Press briefing on behalf of Megrahi family

[What follows is the text of a press release issued today by Aamer Anwar & Co on behalf of the Megrahi family:]

Statement issued on behalf of the family of Mr Al-Megrahi by solicitor Aamer Anwar

“It has been a long journey in the pursuit for truth and justice. When Pan Am Flight 103 exploded over Lockerbie on the 21st December 1988 killing 270 people from 21 countries, it remains the worst terrorist atrocity ever committed in the UK. Nearly 30 years later many believe that Megrahi was the victim of a miscarriage of justice.

An application was lodged by my office in July 2017 with the Scottish Criminal Cases Review Commission (SCCRC) seeking to overturn the conviction of Abdelbaset Ali Mohmed al-Megrahi for murder.

The application was submitted on behalf of :-

i)                    The immediate family members of the late Abdelbaset al-Megrahi including his wife Aysha Ali Ahmed and son Ali abdulbasit Al-Megrahi (aged 22)

ii)                  Dr Jim Swire, Rev’d John F Mosey and many other British relatives of passengers who died on board Pan Am Flight 103 continue to support this application.

The Commission had previously determined on the 28th June 2007 that Abdelbaset al-Megrahi may have suffered a miscarriage of justice in relation to his conviction and identified six grounds for referring the case to the High Court. We have asked the Commission to reconfirm these six grounds.  

Special circumstances

The Commission were asked to address the issue of whether it is in the interests of justice to refer the case to the High Court for a posthumous appeal. The Appeal was commenced but following the diagnosis of terminal cancer it was suddenly abandoned in 2009. The application being lodged dealt with the circumstances that lead to Mr Al-Megrahi abandoning his appeal.

To date both the UK Government and Scottish Government have claimed that they played no role in pressuring Mr  Megrahi into dropping his appeal as a condition of his immediate release. It was alleged that this was fundamentally untrue.

The question for the Commission was whether it regards it as in the interests of justice to refer a case back to the High Court where the convicted person himself had commenced an appeal on a SCCRC reference and then chosen to abandon it.

The answer depended on the precise circumstances in which the appellant came to abandon his appeal. Mr Megrahi's terminal illness; the fact that prisoner transfer was not open while the appeal was ongoing; and whether Mr Megrahi had no way of knowing that Kenny MacAskill would ultimately opt for compassionate release rather than prisoner transfer, or as is alleged that he was led to believe that he would not be released unless he dropped his appeal.

We welcome the news that today that the SCCRC having considered all the available evidence have confirmed that they believe then when Mr Megrahi abandoned his appeal, he did so as he believed he held a genuine and reasonable belief that such a course of action would result in him being able to return home to Libya, at a time when he was suffering from terminal cancer.

The case will now proceed to stage 2 and the Commission will conduct a full review of the conviction for the ‘Lockerbie Bombing’ in order to decide if the case is referred back to the Court of Appeal.

The reputation of the Scottish law has suffered both at home and internationally because of widespread doubts about the conviction of Mr Al-Megrahi. It is in the interests of justice and restoring confidence in our criminal justice system that these doubts can be addressed, however the only place to determine whether a miscarriage of justice did occur is in the appeal court, where the evidence can be subjected to rigorous scrutiny.

ONCE THE APPLICATION LODGED WITH THE SCCRC -WHAT HAPPENS?

1.      The case will be assigned to a case worker at the SCCRC and that worker will consider the case and provide a report to the Board (who sit once a month) The Board will consider whether to refer it back.

2.      The Board normally consider several cases at the same time but it is likely that in this instance the Board will convene specially to hear this application. 

3.      The SCCRC review and investigation process is described as thorough, robust, impartial and independent.

4.      On receipt of an application the Chief Executive of the Commission allocates the application to a legal officer. They obtain the court papers.

5.      The legal officer obtains any other further information he or she considers to be necessary so that the Board of the Commission can take a decision about whether to accept the application for review. 

6.      If the Board does not accept the application for review, the Chief Executive writes to the applicant and his or her representative to inform them of the Board's decision and the file is closed.

7.      If the Board accepts the application for review, they will write to all the relevant parties - e.g. The Crown, the Police and the Defence - to notify them that the application has been accepted for review and to request that they preserve for the duration of our review all documents and productions they hold relative to the case.

8.      They obtain then relevant papers from the Crown, the Police and the Defence. 

9.      Under normal circumstances the Legal Officer will conduct a review of the papers and issues in the case and will arrange to interview the applicant. 

10.  The Legal Officer prepares a case plan document setting out information relating to the evidence led at trial, the appeal, the grounds of review and his or her recommendations to take forward the review of the case.

11.  Within two months from the date of the acceptance of the application for review, the case plan is submitted to a Committee of two or three Board Members and the Chief Executive. The Committee consider the case plan and agree a course of action with the Legal Officer for the review of the case.

12.  The Legal Officer proceeds with the investigation and review, updating the Committee on the progress of the review every month or so and seeking guidance from the Committee and/or the Chief Executive where necessary.

13.  The review process should take no longer than nine months for conviction cases.

14.  After the review of the case is completed, the Committee take a view about whether or not the case should be referred to the High Court.

15.  The legal officer then prepares a draft statement of reasons for referral or non-referral for the Committee’s consideration. Once the Committee is content with the draft statement of reasons, the case is submitted to the Board of the Commission for a decision. 

16.  If the Board recommends a referral then the application will go back to the Appeal Court.

BACKGROUND TO THE CONVICTION AND SENTENCE

Mr Megrahi was convicted on the 31st January 2001 of the charge of murder following trial at the High Court of Justiciary sitting at Kamp van Zeist in the Netherlands. His co-accused Al-amin Khalifa Fimah was acquitted following trial. Mr Megrahi was sentenced to life imprisonment with a minimum term of 27 years.

Appeal

Abdelbaset al-Megrahi’s first appeal was dismissed on the 14th March 2002.

The next appeal was mounted in consequence of the Scottish Criminal Case Review Commission’s reference dated 28 June 2007.

Grounds of Appeal 1 and 2 were argued before the Court in full at a public hearing which took place between 28 April and 19 May 2009. On 7th July 2009 the Court indicated that one of its numbers, Lord Wheatley, had been hospitalised. It continued consideration of the grounds of appeal.

On 18th August 2009 Mr Megrahi with leave of the court, abandoned his appeal. No judgement or opinion has therefore been handed down by the Court upon these submissions.

BACKGROUND TO THE CONVICTION  

Pan Am flight 103 (“PA103”)

1.5 At 7.03pm on Wednesday 21 December 1988, shortly after taking off from Heathrow airport, PA103 was flying at an altitude of 31,000 feet en route to John F Kennedy airport, New York, when an explosion caused the aircraft to disintegrate and fall out of the sky. 243 passengers and 16 crew on board were killed. The victims came from 21 countries, the vast majority being from the United States.

1.6 The resulting debris was spread over a very wide area in Scotland and the North of England, but principally it landed in and around the town of Lockerbie causing the deaths of a further 11 people. In all 270 people were killed in the disaster.

1.7 A massive police operation was mounted to recover the bodies of the victims and as much of the debris as possible. The local police force, Dumfries and Galloway Constabulary (“D&G”), was assisted in the search operation by numerous officers from other forces in Scotland and England, as well as by military personnel and members of voluntary organisations.

Fatal Accident Inquiry

1.8 On 1 October 1990 a fatal accident inquiry was conducted by Sheriff Principal John Mowat QC. In his findings in fact, Sheriff Principal Mowat found that a Samsonite suitcase (“the primary suitcase”) containing a Toshiba radio cassette recorder loaded with a Semtex-type plastic explosive had been placed on board Pan Am flight 103A (“PA103A”) from Frankfurt to London Heathrow before being transferred to PA103; that the suitcase had probably arrived at Frankfurt on another airline and been transferred to PA103A without being identified as an unaccompanied bag; that the baggage had not been reconciled with passengers travelling on PA103, nor had it been x-rayed at Heathrow; and that the cause of all the deaths was the  detonation of the explosive device in luggage container AVE 4041 which had been situated on the left side of the forward hold of the aircraft.

1.9 Sheriff Principal Mowat concluded that the primary cause of the deaths was a criminal act of murder.

The police investigation

 1.10 It had been concluded very soon after the disaster that the likely cause had been the detonation of an improvised explosive device. From the date of the explosion and throughout the course of 1989-1991, an extensive international police investigation was carried out, principally involving the British and American investigating authorities, but also including the police forces of the former Federal Republic of Germany (“the BKA”) and of Malta.

1.11 Initially, suspicion fell upon Palestinian terrorist groups, in particular the Popular Front for the Liberation of Palestine – General Command (“PFLP-GC”). However, in 1990 developments in the investigation turned its focus to Libya, and on 13 November 1991 a warrant was granted by a sheriff at Dumfries for the arrest of the applicant and Al Amin Khalifa Fhimah (“the co-accused”), both Libyan nationals. On the following day the Lord Advocate issued an indictment setting out the charges against the two accused. Simultaneously, as a result of a federal grand jury investigation, the US Attorney General published an indictment in substantially similar terms to that issued by the Scottish authorities.

1.12 Following publication of the indictments, the UK and the US sought the handover of the two accused for trial, and throughout 1992 and 1993 the UN Security Council issued a number of resolutions calling upon Libya to do so. It also imposed extensive economic sanctions against that country. Libya denied any involvement in the crime.

Proposals for trial in the Netherlands

1.13 In 1998 the governments of the UK and the US wrote to the Secretary General of the UN indicating that they were prepared to arrange a trial of the two accused before a Scottish court sitting in the Netherlands. The trial, it was proposed, would follow Scots law and procedure in every respect except that the jury would be replaced by a panel of three judges. Following Libya’s consent to the initiative, an agreement was entered into between the UK and the Netherlands to put it into effect. On the same date, the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 came into force in the UK, regulating such matters as the constitution of the trial and appeal courts.

1.14 Lords Sutherland, Coulsfield and MacLean were appointed to form the panel of judges. Lord Abernethy was appointed as an additional judge to assume the functions of any member of the panel who died during the proceedings or was absent for a prolonged period. He was not required to carry out that function. The location of the court was chosen as Kamp van Zeist in the Netherlands.

1.15 On 5 April 1999, the applicant and the co-accused travelled to the Netherlands where they were arrested by Scottish police officers. On 14 April 1999 they were fully committed for trial, and were detained at premises within the court precincts. The indictment was served upon them on 29 October 1999.

The trial 

1.16 Preliminary pleas to the competency and relevancy of the charges were raised by both accused and argued on their behalf by counsel at a hearing on 7 December 1999. On 8 December, Lord Sutherland, sitting alone, held the charges to be both competent and relevant (see HMA v Al Megrahi (No 1) 2000 SCCR 177). Leave to appeal the decision was granted but no appeal was taken.

1.17 The trial commenced on 3 May 2000, and the cases for both accused closed on 8 January 2001. Neither the applicant nor the co-accused gave evidence.  Following submissions by the parties on 18 January 2001 the diet was adjourned to allow the judges to deliberate upon their verdicts.

1.19 The court returned its verdict on 31 January 2001. It unanimously found the co-accused not guilty. The verdict in relation to the applicant was recorded in the minutes of trial in the following terms (see also the transcript of proceedings on day 86 of the trial):

“The Court Unanimously found the Accused Abdelbaset Ali Mohmed Al Megrahi GUILTY on the Second Alternative Charge but that under deletion of the words ‘and you Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifah [sic] Fhimah  did there and then cause a suitcase to be introduced to Malta’ in lines 4 to 6 of subhead (e) of said charge and under deletion of the words ‘said suitcase, or’ in line 4 of subhead (g) and under deletion of the word ‘similar’ in line [4] of said subhead (g)”.

1.20 The court sentenced the applicant to life imprisonment, backdated to 5 April 1999, and recommended that he serve a minimum period of 20 years before he could be considered for release on licence.

Post-trial developments 

Appeal 

1.21 The applicant lodged grounds of appeal against conviction on 11 June 2001 and leave to appeal was granted on 23 August 2001. The proceedings took place at Kamp van Zeist between 23 January and 14 February 2002, and the opinion of the court, rejecting the appeal, was issued on 14 March 2002.

Application to the European Court of Human Rights 

1.22 On 12 September 2002 the applicant’s defence team lodged an application (number 33955/02) with the European Court of Human Rights in which they argued that the applicant’s right to a fair trial had been infringed by, inter alia, prejudicial pre-trial publicity. On 11 February 2003 the court ruled the application inadmissible on the basis that the applicant had failed to exhaust domestic remedies by raising these issues in the domestic forum.

Diplomatic developments 

1.25 On 12 September 2003, the UN passed a resolution lifting all UN sanctions against Libya.

 “Punishment part” hearing

 1.26 At a hearing at the High Court in Glasgow on 24 November 2003 under the Convention Rights (Compliance) (Scotland) Act 2001, the punishment part of the applicant’s sentence was set at 27 years, again backdated to 5 April 1999. On 18 December 2003 the Lord Advocate appealed against the sentence as being unduly lenient. 

For further background please refer to:-

http://www.megrahimystory.net/

http://www.bbc.co.uk/news/uk-scotland-scotland-politics-25465662

http://www.heraldscotland.com/news/home-news/lockerbie-exclusive-we-publish-the-report-that-could-have-cleared-megrahi.2012036248

http://www.sccrc.org.uk/ViewFile.aspx?id=612

http://www.theguardian.com/uk/2009/oct/12/lockerbie-bombing-abdelbaset-al-megrahi

http://www.foreignpolicyjournal.com/2014/01/10/the-bombing-of-pan-am-flight-103-case-closed/#.U4qCr_ldWSo

http://lockerbiecase.blogspot.co.uk/2012/03/today-sunday-herald-publishes-behind.html 

http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/10690021/Lockerbie-Scottish-ministers-entirely-comfortable-with-idea-of-fresh-Megrahi-appeal.html

Finally my family has hope that our father’s name will be cleared

[What follows is a statement issued today by Aamer Anwar, solicitor for the Megrahi family members on whose behalf the application to the Scottish Criminal Cases Review Commission was made:]

On the 21st December 1988, 270 people from 21 countries were murdered in the bombing of Pan Am Flight 103 over Lockerbie, the worst terrorist atrocity ever committed in the United Kingdom.

Since then the case of Abdelbasset Al-Megrahi the only man ever convicted of the crime has been described as the worst miscarriage of justice in British legal history.

[An] appeal was commenced in 2007 but following the diagnosis of terminal cancer it was suddenly abandoned in 2009.

A reversal of the verdict would have meant that the governments of the United States and the United Kingdom stand exposed as having lived a monumental lie for 31 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit.

In June 2014 we lodged an application with the Commission (SCCRC) seeking to overturn the conviction of Abdelbaset Ali Mohmed al-Megrahi for murder. The application was submitted on behalf of the Immediate family members of the late Mr Al-Megrahi along with Dr Jim Swire, Reverend John F Mosey and 22 other British relatives of passengers who died on board Pan Am Flight 103.

The Appeal Court in a judgment in July 2015, ruled that the relatives of Lockerbie bombing victims would not be allowed to pursue an appeal on behalf of the only man convicted of the crime. The families did not give up and in July 2017 a further application was lodged with the Commission on behalf of the Al-Megrahi family.

For those who believe there is a time limit on justice I would like to quote Dr Jim Swire who I spoke to this morning after advising him of the decision.

Dr Swire, father of Flora Swire who, one day before her 24th birthday, was brutally murdered said:-

 “It has always been and remains my intent to see those responsible for her death brought to justice. I still ache for her, what might have been, the grandchildren she would have had, the love she always gave us and the glowing medical career. For me this case is about two families, mine and Abdelbasset’s, but behind them now are seen to lie the needs of 25 other families in applying for a further appeal 31 years after the event itself- We need the truth.”

I pay tribute to the compassion, courage and perseverance of Dr. Swire, Rev Mosey, the many British relatives of victims and of course to the family of Mr. Al-Megrahi who lost a father, husband and son and describe him as the 271st victim.

I am grateful to our legal team, in particular Clair Mitchell QC and Gordon Jackson QC for their support and tireless efforts, as well as Robert Black QC.

We are grateful to the staff of the Scottish Criminal Cases Review Commission for their exceptional hard work that has taken place over several years as a result of our application.

I can advise that this morning at 11am the Commission delivered to my office the full statement of reasons totaling  451 pages. I quote from their letter:

“The Scottish Criminal Cases Review Commission has decided that Mr. Megrahi’s case should be referred to the High Court for the determination. The Commission believes that there may have been a miscarriage of justice in relation to the conviction, and that it is in the interests of justice to refer the case to the High Court.”

We had identified six grounds for referring the case to the Appeal Court. 

 The Commission have gone on to deliver a damning indictment of the process and believe that a miscarriage of justice may have occurred by reason of an ‘Unreasonable Verdict’ and the ground of ‘Non-Disclosure’. These grounds incorporate many of the issues we had identified in our application.

Unreasonable verdict

S106(3)(b) of the 1995 Act allows an appeal on the basis that a conviction was based upon a verdict that no reasonable jury, properly directed, could have returned. Despite the fact there was no jury here, that ground of appeal remains open to Mr Al Megrahi.

This ground relates to the Court’s finding that Mr Al Megrahi was the purchaser of items that were located within the suitcase which housed the bomb which destroyed Flight 103. Said items having been bought in a shop in Malta owned by Mr Tony Gauci.

The Commission have agreed with our submission that the Court could not reasonably find that Mr Megrahi was the purchaser of the items on the basis of the evidence which was before them. This finding was central to the Crown case against Mr Al Megrahi as absent that finding that linked Mr Al Megrahi to the items within the bomb suitcase, there would have been insufficient evidence to allow the Court to convict.

Mr Gauci’s statements and his evidence on identification were inconsistent. The positive identifications of Mr Al Megrahi which he made were qualified in some instances and made in circumstances hugely prejudicial to Mr Al Megrahi in others.  His evidence regarding the date of the purchase of the items from his store was perhaps even more incredible and could – and should – not have been accepted as credible or reliable.

The Commission have concluded that no reasonable Court could have accepted the evidence that Mr Megrahi was identified as the purchaser of the items from Gauci’s shop. That being the case, no reasonable Court could have convicted him.

 Non-Disclosure

We submitted serious allegations of the failure of the Crown to disclose evidence which could have been key to the defence and interfered with the right to a fair trial.

The Crown failed in its duty of disclosure of relevant material to Mr Al Megrahi’s defence team prior to trial. This prejudiced the defence in their preparation and conduct of the trial to such an extent that the Commission have concluded that this may have given rise to a miscarriage of justice.

The Commission conclude that there should have been disclosure to the defence regarding:

*Information contained in the precognition statement provided by Mr Gauci to the Crown.
*A statement given by Sergeant Bussutil and a confidential police report regarding Mr Gauci’s exposure to photographs in a magazine prior to attending an identification parade.
*Reward monies paid to Mr Gauci and his brother. Documents have claimed that Scottish police officers and FBI agents had discussed as early as September 1989 an offer of unlimited money to the Maltese shop keeper Tony Gauci.

We submit that it is unacceptable to offer bribes, inducements or rewards to any witness in a routine murder trial in Glasgow then it should have been unacceptable to have done it in the biggest case of mass murder ever carried out in Europe. Various reports have claimed that Tony Gauci received more than $2m in reward-money.

The Commission conclude that, when applying the Article 6 test regarding a fair trial under the ECHR, the failure by the Crown to disclose information regarding the photographs which had been viewed by Mr Gauci and the information on reward monies paid to the Gauci’s, that a miscarriage of justice may have occurred.

INTERESTS OF JUSTICE

 The Commission was asked to address the issue of whether it is in the interests of justice to refer the case to the High Court for a further appeal. [An] appeal was commenced in 2007 but following the diagnosis of terminal cancer it was suddenly abandoned in 2009. Ordinarily this would be a bar to a further appeal being raised.

The application we lodged dealt with the circumstances that lead to Mr Megrahi abandoning his appeal.

The Commission concluded that Mr Al-Megrahi abandoned his appeal in the genuine and reasonable belief that the Scottish Government had exerted pressure upon him to do so, to allow them to release him on compassionate grounds.

Consent to disclose Information

We are disappointed that various redactions appear in the statement of reasons because the Scottish Government, the UK Government, the Federal Republic of Germany and the United States Government have refused consent to disclose matters which at this time reman redacted.

We must now insist that the Lord Advocate abide by his duty to make full disclosure.

In conclusion the reputation of the Scottish criminal justice system has suffered badly both at home and internationally because of widespread doubts about the conviction of Mr Al-Megrahi.

Mr Al- Megrahi was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.

Within 21 days we must lodge a note of appeal with the High Court.

 There is finally hope on what has been a long journey for the truth, but there can never be a time limit on justice. 

I conclude with the words of Ali-Al-Megrahi (the son)

“Finally my family has hope that our father’s name will be cleared, I am grateful to all those who have supported my family in their long struggle for justice.”

WHAT HAPPENS NEXT?

The Criminal Procedure (Scotland) Act 1995 states that where the Commission make a reference to the High Court they —

Give to the Court a statement of their reasons for making the reference; and

Send a copy of the statement to every person who appears to them to be likely to be a party to any proceedings on the appeal arising from the reference.

The grounds for an appeal arising from a reference to the High Court under section 194B of this Act must relate to one or more of the reasons for making the reference contained in the Commission's statement of reasons.  

 What happens next is that we assess the document and put in our note of appeal one or more of the reasons for making the reference.  We are not bound to put forward all of them – we are also not inhibited from adding more but “the High Court may, if it considers it is in the interests of justice to do so, grant leave for the appellant to found the appeal on additional grounds.”  

 An application by the appellant for leave to appeal must be made and intimated to the Crown Agent within 21 days after the date on which a copy of the Commission's statement of reasons is sent under subsection (4)(b).

 (4D)The High Court may, on cause shown, extend the period of 21 days mentioned in subsection (4C).

 The Appeal Court used to have the power to reject a reference but the law on that was changed in 2017.

First we have to assess the grounds of appeal that the Commission want to put forward – they have of course had since June 2014 and then July 2017 and a whole host of staff and resources to consider this. Our team will have to consider what we have been given and draft the note of appeal against conviction and have it lodged.

 It is highly likely that there will be requests for extensions of the time required to conduct a thorough review of the SCCRC decision and to prepare the note of appeal. Following that, there will be a number of procedural hearings, before the final appeal hearing.

We will also today write to the Lord Advocate advising him of his duty of disclosure and disclose all information

BACKGROUND TO THE CONVICTION AND SENTENCE

Mr Megrahi was convicted on the 31st January 2001 of the charge of murder following trial at the High Court of Justiciary sitting at Kamp van Zeist in the Netherlands. His co-accused Al-amin Khalifa Fimah was acquitted following trial. Mr Megrahi was sentenced to life imprisonment with a minimum term of 27 years.

Appeal

Abdelbaset al-Megrahi’s first appeal was dismissed on the 14th March 2002.

The next appeal was mounted in consequence of the Scottish Criminal Case Review Commission’s reference dated 28 June 2007.

Grounds of Appeal 1 and 2 were argued before the Court in full at a public hearing which took place between 28 April and 19 May 2009. On 7th July 2009 the Court indicated that one of its numbers, Lord Wheatley, had been hospitalised. It continued consideration of the grounds of appeal.

On 18th August 2009 Mr Megrahi with leave of the court, abandoned his appeal. No judgement or opinion has therefore been handed down by the Court upon these submissions.

BACKGROUND TO THE CONVICTION  

Pan Am flight 103 (“PA103”)

1.5 At 7.03pm on Wednesday 21 December 1988, shortly after taking off from Heathrow airport, PA103 was flying at an altitude of 31,000 feet en route to John F Kennedy airport, New York, when an explosion caused the aircraft to disintegrate and fall out of the sky. 243 passengers and 16 crew on board were killed. The victims came from 21 countries, the vast majority being from the United States.

1.6 The resulting debris was spread over a very wide area in Scotland and the North of England, but principally it landed in and around the town of Lockerbie causing the deaths of a further 11 people. In all 270 people were killed in the disaster.

1.7 A massive police operation was mounted to recover the bodies of the victims and as much of the debris as possible. The local police force, Dumfries and Galloway Constabulary (“D&G”), was assisted in the search operation by numerous officers from other forces in Scotland and England, as well as by military personnel and members of voluntary organisations.

Fatal Accident Inquiry

1.8 On 1 October 1990 a fatal accident inquiry was conducted by Sheriff Principal John Mowat QC. In his findings in fact, Sheriff Principal Mowat found that a Samsonite suitcase (“the primary suitcase”) containing a Toshiba radio cassette recorder loaded with a Semtex-type plastic explosive had been placed on board Pan Am flight 103A (“PA103A”) from Frankfurt to London Heathrow before being transferred to PA103; that the suitcase had probably arrived at Frankfurt on another airline and been transferred to PA103A without being identified as an unaccompanied bag; that the baggage had not been reconciled with passengers travelling on PA103, nor had it been x-rayed at Heathrow; and that the cause of all the deaths was the  detonation of the explosive device in luggage container AVE 4041 which had been situated on the left side of the forward hold of the aircraft.

1.9 Sheriff Principal Mowat concluded that the primary cause of the deaths was a criminal act of murder. 

The police investigation

1.10 It had been concluded very soon after the disaster that the likely cause had been the detonation of an improvised explosive device. From the date of the explosion and throughout the course of 1989-1991, an extensive international police investigation was carried out, principally involving the British and American investigating authorities, but also including the police forces of the former Federal Republic of Germany (“the BKA”) and of Malta.

1.11 Initially, suspicion fell upon Palestinian terrorist groups, in particular the Popular Front for the Liberation of Palestine – General Command (“PFLP-GC”). However, in 1990 developments in the investigation turned its focus to Libya, and on 13 November 1991 a warrant was granted by a sheriff at Dumfries for the arrest of the applicant and Al Amin Khalifa Fhimah (“the co-accused”), both Libyan nationals. On the following day the Lord Advocate issued an indictment setting out the charges against the two accused. Simultaneously, as a result of a federal grand jury investigation, the US Attorney General published an indictment in substantially similar terms to that issued by the Scottish authorities.

1.12 Following publication of the indictments, the UK and the US sought the handover of the two accused for trial, and throughout 1992 and 1993 the UN Security Council issued a number of resolutions calling upon Libya to do so. It also imposed extensive economic sanctions against that country. Libya denied any involvement in the crime.

Proposals for trial in the Netherlands

1.13 In 1998 the governments of the UK and the US wrote to the Secretary General of the UN indicating that they were prepared to arrange a trial of the two accused before a Scottish court sitting in the Netherlands. The trial, it was proposed, would follow Scots law and procedure in every respect except that the jury would be replaced by a panel of three judges. Following Libya’s consent to the initiative, an agreement was entered into between the UK and the Netherlands to put it into effect. On the same date, the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 came into force in the UK, regulating such matters as the constitution of the trial and appeal courts.

1.14 Lords Sutherland, Coulsfield and MacLean were appointed to form the panel of judges. Lord Abernethy was appointed as an additional judge to assume the functions of any member of the panel who died during the proceedings or was absent for a prolonged period. He was not required to carry out that function. The location of the court was chosen as Kamp van Zeist in the Netherlands.

1.15 On 5 April 1999, the applicant and the co-accused travelled to the Netherlands where they were arrested by Scottish police officers. On 14 April 1999 they were fully committed for trial, and were detained at premises within the court precincts. The indictment was served upon them on 29 October 1999.

The trial 

1.16 Preliminary pleas to the competency and relevancy of the charges were raised by both accused and argued on their behalf by counsel at a hearing on 7 December 1999. On 8 December, Lord Sutherland, sitting alone, held the charges to be both competent and relevant (see HMA v Al Megrahi (No 1) 2000 SCCR 177). Leave to appeal the decision was granted but no appeal was taken.

1.17 The trial commenced on 3 May 2000, and the cases for both accused closed on 8 January 2001. Neither the applicant nor the co-accused gave evidence.  Following submissions by the parties on 18 January 2001 the diet was adjourned to allow the judges to deliberate upon their verdicts.

1.18 There were originally three alternative charges libelled on the indictment: (1) conspiracy to murder; (2) murder and (3) contravention of sections 2(1) and 5 of the Aviation Security Act 1982. However, on 10 January 2001, the advocate depute’s motion to delete charges (1) and (3), and to amend charge (2), was granted by the court. Consequently, by the end of the trial both accused faced only a single charge of murder in the following terms:

“(2) You ABDELBASET ALI MOHMED AL MEGRAHI being a member of the Libyan Intelligence Services and in particular being the head of security of Libyan Arab Airlines and thereafter Director of the Centre for Strategic Studies, Tripoli, Libya and you AL AMIN KHALIFA FHIMAH being the Station Manager and formerly the Station Manager of Libyan Arab Airlines in Malta and having, while acting in concert with others, formed a criminal purpose to destroy a civil passenger aircraft and murder the occupants in furtherance of the purposes of the said Libyan Intelligence Services and having between 1 January 1985 and 21 December 1988, both dates inclusive, within the offices of Libyan Arab Airlines at Luqa Airport, Malta and elsewhere in Malta in your possession and under your control quantities of high performance plastic explosive and airline luggage tags, while acting in concert together and with others [sub-paragraph (a) was deleted on the motion of the advocate depute]

(b) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did between 20 November and 20 December 1988, both dates inclusive, at the premises occupied by the firm of MEBO AG at the Novapark Hotel, Zurich Switzerland, at the premises occupied by you ABDELBASET ALI MOHMED AL MEGRAHI and by the said Libyan Intelligence Services, in Tripoli aforesaid, and elsewhere in Switzerland and Libya, through the hands of Ezzadin Hinshiri and Badri Hassan both also members of the Libyan Intelligence Services, order and attempt to obtain delivery from the said firm of MEBO AG of forty timers capable  of detonating explosive devices and of a type previously supplied by the said firm of MEGO AG to member of the Libyan Intelligence Services;

(c) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did between 1 and 21 December 1988, both dates inclusive, at Luqa Airport, Malta without authority remove therefrom airline luggage tags; 

(d) you ABDELBASET ALI MOHMED AL MEGRAHI did on 7 December 1988 in the shop premises known as Mary’s House at Tower Road, Sliema, Malta purchase a quantity of clothing and an umbrella;

(e) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did on 20 December 1988 at Luqa Airport, Malta enter Malta while you ABDELBASET ALI MOHMED AL MEGRAHI were using a passport in the false name of Ahmed Khalifa Abdusamad and you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did there and then cause a suitcase to be introduced to Malta;

(f) you ABDELBASET ALI MOHMED AL MEGRAHI did on 20 and 21 December 1988 reside at the Holiday Inn Tigne Street, Sliema, aforesaid under the false identity of Ahmed Khalifa Abdusamad;

(g) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did on 21 December 1988 at Luqa Airport, aforesaid place or cause to be placed on board an aircraft of Air Malta flight KM180 to Frankfurt am Main Airport, Federal Republic of Germany said suitcase, or a similar suitcase, containing said clothing and umbrella and an improvised explosive device containing high performance plastic explosive concealed within a Toshiba RT SF 16 “Bombeat” radio cassette recorder and programmed to be detonated by one of said electronic timers, having tagged or caused such suitcase to be tagged so as to be carried by aircraft from Frankfurt am Main Airport aforesaid via London, Heathrow Airport to New York, John F Kennedy Airport, United States of America; and

(h) you ABDELBASET ALI MOHMED AL MEGRAHI did on 21 December 1988 depart from Malta and travel from there to Tripoli, Libya using a passport in the false name of Ahmed Khalifa Abdusamad, while travelling with said Mohammed Abouagela Masud also a member of the Libyan Intelligence Services; and such suitcase was thus carried to Frankfurt am Main Airport aforesaid and there placed on board an aircraft of Pan American World Airways flight PA103 and carried to London, Heathrow Airport aforesaid and there, in turn, placed on board an aircraft of Pan American World Airways flight PA103 to New York, John F Kennedy Airport aforesaid; and said improvised explosive device detonated and exploded on board said aircraft flight PA103 while in flight near to Lockerbie, Scotland whereby the aircraft was destroyed and the wreckage crashed to the ground and the 259 passengers and crew named in Schedule 1 hereof and the 11 residents of Lockerbie aforesaid named in Schedule 2 hereof were killed and you did murder them; and it will be shown that between 1 January 1985 and 21 December 1988, both dates inclusive, in Tripoli, Libya, at Dakar Airport, Senegal, in Malta and elsewhere the said Libyan Intelligence Services were in possession of said electronic timers, quantities of high performance plastic explosive, detonators and other components of improvised explosive devices and Toshiba RT SF 16 “Bombeat” radio cassette recorders, all for issue to and use by their members, including Mohammed El Marzouk and Mansour Omran Ammar Saber.”

1.19 The court returned its verdict on 31 January 2001. It unanimously found the co-accused not guilty. The verdict in relation to the applicant was recorded in the minutes of trial in the following terms (see also the transcript of proceedings on day 86 of the trial):

“The Court Unanimously found the Accused Abdelbaset Ali Mohmed Al Megrahi GUILTY on the Second Alternative Charge but that under deletion of the words ‘and you Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifah [sic] Fhimah  did there and then cause a suitcase to be introduced to Malta’ in lines 4 to 6 of subhead (e) of said charge and under deletion of the words ‘said suitcase, or’ in line 4 of subhead (g) and under deletion of the word ‘similar’ in line [4] of said subhead (g)”.

1.20 The court sentenced the applicant to life imprisonment, backdated to 5 April 1999, and recommended that he serve a minimum period of 20 years before he could be considered for release on licence.

 Post-trial developments 

Appeal 

1.21 The applicant lodged grounds of appeal against conviction on 11 June 2001 and leave to appeal was granted on 23 August 2001. The proceedings took place at Kamp van Zeist between 23 January and 14 February 2002, and the opinion of the court, rejecting the appeal, was issued on 14 March 2002. 

Application to the European Court of Human Rights 

1.22 On 12 September 2002 the applicant’s defence team lodged an application (number 33955/02) with the European Court of Human Rights in which they argued that the applicant’s right to a fair trial had been infringed by, inter alia, prejudicial pre-trial publicity. On 11 February 2003 the court ruled the application inadmissible on the basis that the applicant had failed to exhaust domestic remedies by raising these issues in the domestic forum.

Diplomatic developments 

1.23 On 15 August 2003, Libya delivered a letter regarding the Lockerbie bombing to a meeting of the UN Security Council. The letter contained the following passages: 

“… the remaining issues relating to fulfilment of all Security Council resolutions

resulting from the Lockerbie incident have been resolved…

… Libya as a sovereign state:

••• Has facilitated the bringing to justice of the two suspects charged with the

bombing of Pan AM 103, and accepts responsibility for the actions of its

officials;

••• Has cooperated with the Scottish investigating authorities before and during

the trial and pledges to cooperate in good faith with any further requests for

information in connection with the Pan Am 103 investigation. Such

cooperation would be extended in good faith through the usual channels;

••• Has arranged for the payment of appropriate compensation…”

1.24 On 12 September 2003, the UN passed a resolution lifting all UN sanctions

against Libya.

“Punishment part” hearing

1.25 At a hearing at the High Court in Glasgow on 24 November 2003 under the Convention Rights (Compliance) (Scotland) Act 2001, the punishment part of the applicant’s sentence was set at 27 years, again backdated to 5 April 1999. On 18 December 2003 the Lord Advocate appealed against the sentence as being unduly lenient. 

For further background please refer to:-

http://www.bbc.co.uk/news/uk-scotland-scotland-politics-25465662

http://www.heraldscotland.com/news/home-news/lockerbie-exclusive-we-publish-the-report-that-could-have-cleared-megrahi.2012036248

http://www.sccrc.org.uk/ViewFile.aspx?id=612

http://lockerbiecase.blogspot.co.uk/2012/03/today-sunday-herald-publishes-behind.html 

http://www.bbc.co.uk/news/uk-scotland-scotland-politics-25465662

https://www.bbc.co.uk/news/uk-scotland-south-scotland-43987079

http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/10688067/Lockerbie-bombing-was-work-of-Iran-not-Libya-says-former-spy.html