Trial told of security weakness

[This is the headline over a report that appeared on the BBC News website on this date in 2000. It reads in part:]

The Lockerbie trial has heard an airport supervisor admit it would have been possible for an unchecked bag to have been put on a flight from Malta which connected with Pan Am 103.

But Wilfred Borg, ground operations general manager at Malta's Luqa Airport, denied unidentified luggage records produced by the prosecution showed safety procedures were broken.

Prosecutors are trying to prove the two Libyans accused of bombing a New York-bound airliner over Lockerbie, Scotland, planted the suitcase with the bomb on an Air Malta flight which later connected with the Pan Am flight.

Mr Borg was questioned for hours by prosecutor Alan Turnbull about safety operations at the airport. (...)

In particular, he pointed to a 21 December 1988 Air Malta flight to Cairo in which five bags left on the tarmac in a previous flight were cleared without any apparent record of their identification by passengers.

"Is the obvious inference not that baggage was on board without passengers?" he asked.

Mr Borg replied: "No."

"There must have at least have been a possibility," Mr Turnbull insisted.

"I cannot discount the possibility," the witness answered.

Mr Turnbull said 55 bags were checked and recorded as loaded onto KM 180 to Frankfurt, but noted that although the flight coupons belonging to a group of three passengers showed 16 bags, the check-in list only registered 14 bags.

Mr Borg rejected the prosecutor's suggestion that a decline in the average number of inconsistencies after February 1989 suggested security lapses were cleaned up after German police came to Malta to question airport employees in connection with the Lockerbie bombing.

At the end of the day, Turnbull asked Mr Borg to verify a photo badge that gave defendant Lamen Khalifa Fhimah, the Libyan airline's station manager, security clearance throughout the airport.

This was after the prosecutor had asked whether a person familiar with security operations and access to loading areas could "deliberately have circumvented the checks you had in place?"

Mr Borg replied: "Anything is possible. Whether it was probable is a different story."

[RB: What follows is excerpted from TheLockerbieTrial.com’s contemporaneous commentary on this evidence:]

Certain assumptions have been made regarding Malta's Luqa airport. It has been assumed by many that because Malta is a small country then it follows that their airport security would be lax.

The Crown will undoubtedly contend that all was not well with security at Luqa airport and this will assist their assertions that the suitcase containing the bomb was inserted at this point.

However our investigations have uncovered startling new facts which may counter this part of the Crown theory.

The arguments that may be used to counter this claim have come from a source which will surprise many. It comes directly from the US Federal Aviation Administration, the FAA.

In 1987, a year before the bombing of Pan Am 103, Pan Am made it known that they wished to operate a cargo service to and from Malta. In any instances, where an American flag carrier, such as Pan Am, makes it known that they wish to fly into an airport for the first time, the FAA is mandated to carry out inspections and assessments of the airport concerned.

Officials of the FAA carried out such an assessment of Luqa airport and their report will do nothing to further the Crown's case regarding lax security.

Sources from within the FAA, who spoke on condition of anonymity, have informed us that if they [the FAA] scored airports on a point system giving points out of ten, then their assessment of Luqa Airport would be 9 out of 10.

With the exception of some administrative recommendations, the FAA gave Luqa airport, Malta, a clean bill of health.

Hardly the picture of a small third world countries airport with poor security. Anyone familiar with Luqa airport during that period would know that armed soldiers from the Maltese armed forces carried out much of the security at the airport.

These revelations may have come to light earlier (we learned of this 3 months ago) had the FAA been more careful about their archived documentation.

Those same sources within the FAA confirmed to us that during 1993/1994, the FAA destroyed many assessments and inspections of European airports, covering the 1980s, including the report compiled on Luqa airport. Our source has stated that this destruction was done in error and not in any way to thwart the Lockerbie investigation. The Government of Malta was given a copy of the FAA report.

We make no assertions that the FAA, by destroying these reports, acted in any way maliciously and our sources within the FAA have spoken of the quality and level of co-operation extended to those involved in the legal preparations for this trial.

While the issues under examination today are specific to Air Malta and not to Luqa airport, there is undoubtedly a connection with regards to overall security procedures.

Swiss firm did business with Lockerbie accused

[On this date in 2000, Erwin Meister, co-owner with Edwin Bollier of the Swiss company MEBO, gave evidence at the Lockerbie trial at Camp Zeist. What follows is taken from a report on that date on the BBC News website:]

The owner of the firm which made the timer allegedly used in the Lockerbie bomb says he did business with one of the men accused of the atrocity.

At the Scottish court in the Netherlands, [Erwin] Meister said he recognised Abdelbaset Ali Mohmed Al Megrahi from business dealings which took place in Libya and Zurich prior to the bombing.

He alleged that his Swiss-based company, MEBO, received an "urgent" order for timers from the Libyan army just a few weeks before the explosion of Pan Am 103 which saw the death of all on board.

At that time the firm had been doing regular business with the Libyans, supplying radio and communications equipment and a batch of 20 of its own design "MST-13" electronic timers in 1985.

But Mr Meister told the court that when the urgent order came, MEBO did not have the right materials to produce its own type in time.

Instead the company purchased Olympus timers for delivery to Libya by Mr Meister's business partner Edwin Bollier.

Mr Bollier returned from his trip - via Malta - on the eve of the Lockerbie bombing - still with the timers which the Libyans had returned as unsuitable. [RB: This is not correct. Although he had expected to fly back to Zurich via Malta, Bollier was able to get a direct flight from Tripoli to Zurich: see From Zurich to Malta to Tripoli to Malta to… .]

But then in the first fortnight of January 1989, Mr Bollier looked again at the batch of Olympus timers which had been left on a shelf in the MEBO offices in Zurich since his return the night before the Lockerbie bombing.

Mr Meister explained: "Mr Bollier called me and said: 'Look what I've discovered'. He had in his hand one of the Olympus timers. He asked me to look at it. It was programmed for 7.30pm and the day of the week was a Wednesday."

The Lockerbie explosion in fact occurred shortly after 1900 GMT on Wednesday 21 December, 1988. (...)

The court has already heard that a radio-cassette recorder packed with Semtex attached to an "MST-13" was placed in a suitcase on a Frankfurt-bound flight from Luqa Airport, Malta.

From Frankfurt it was placed aboard Pan Am Flight 103 to Heathrow, exploding on the plane's next leg, from Heathrow to New York, above Lockerbie.

Mr Meister, 62, had told Alan Turnbull QC, prosecuting, that MEBO first established commercial contacts with the Libyan army in about 1980.

He was asked how business was conducted with the Libyans: "It was not like the army purchasing offices in the west," he replied. "We moved from one contact to another." (...)

Mr Meister named his contacts as a communications expert called Ezzadin Hinshiri and another man named Said Rashid - both identified in the Lockerbie indictment as a link between MEBO and the two accused men in obtaining electronic timers.

And he said that on several occasions, in Tripoli and once in Zurich, he met a man called Abdelbaset - and he is one of the men in dock. (...)

Mr Meister said he recalled hearing about the Lockerbie bombing from television reports and he had discussed the tragedy with Mr Bollier.

Then in 1990, Mr Meister told the court, Scottish police first visited MEBO headquarters in the Novapark Hotel in Zurich, requesting an interview about the production of "MST-13" timers and the Pan Am tragedy. 

Crown caught out misleading the court

[On this date in 2000, the procurator fiscal in charge of preparations for the Lockerbie trial wrote a highly significant memorandum to two of the senior advocate deputes prosecuting the case. A redacted copy of the memorandum can be read here. When the memorandum eventually came into the public domain more than a decade later John Ashton commented as follows:]

Welcoming the release of the Scottish Criminal Cases Review Commission's report on the conviction of Abdelbaset al-Megrahi on 25 March [2012], Alex Salmond managed to add to the roll call of excuses for not ordering a public inquiry into the case.

    

The report, he said, 'in many ways is far more comprehensive than any inquiry could ever hope to be'. In fact, it's not: the SCCRC's job was to establish whether Megrahi may have been wrongly convicted, not to examine why the case went so badly wrong, although it undoubtedly shed some light on that matter.  

    

If a single document illustrates why we still need an inquiry, it is a confidential memo dated 2 June 2000 by the lead procurator fiscal on the case, Norman McFadyen. Published here for the first time, it reports on a meeting that McFadyen and advocate depute Alan Turnbull QC had had the previous day at the US embassy in The Hague. Large sections of it remain redacted.

    

The two prosecutors were there to inspect CIA cables relating to one of the Crown's star witnesses, an ex-colleague of Megrahi's called Majid Giaka, who was a member of the Libyan external intelligence service, the ESO. Giaka, it transpired, was also a CIA informant. Crucially, he claimed that, shortly before the bombing, Megrahi had arrived in Malta with a brown Samsonite suitcase and that his co-accused Lamin Fhimah had helped him carry it through airport customs. If true, this was highly significant, because the Lockerbie bomb was also contained within a brown Samsonite and, according to the Crown, began its journey in Malta.

    

Twenty-five heavily redacted cables had been disclosed to the defence. The purpose of the meeting, according to the memo, was to view almost entirely unredacted versions in order to determine 'whether there was any material which required to be disclosed to the defence'. Page two states that, at the CIA's insistence, the two men had to sign a confidentiality agreement, the terms of which McFadyen described as follows: 'If we found material which we wished to use in evidence we would require to raise that issue with the CIA and not make any use of the material without their agreement'. In effect, then, the Crown had secretly ceded to the CIA the right to determine what material might be used in court.          

    

But it's what followed a few paragraphs later that's key. MacFadyen reported that, having inspected the cables:

    

We were able to satisfy ourselves that there was nothing omitted which could assist the defence in itself. There were some references to matters which in isolation might be thought to assist the defence – eg details of payments or of efforts by Majid to secure sham surgery – but since evidence was being provided as to the total of payments made and of the request for sham surgery, the particular material did not appear to be disclosable. We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence.

    

MacFadyen was correct in stating that evidence had been disclosed of the total payments to Giaka and a request for sham surgery in order to enable him to resign from the ESO. The payments were detailed in two separate CIA documents (not cables) while his desire for sham surgery request was referred to in one of the disclosed cables.

    

When, almost three months later, the defence counsel learned of the Hague embassy meeting, they urged the court to ask the Crown to obtain the complete cables from the CIA. In response, the lord advocate, Colin Boyd QC, assured the court that MacFadyen's and Turnbull's review had established that 'there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special [defence of incrimination]'. He added: 'there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid [Giaka] on these matters'.

The court nevertheless urged the Crown to seek fuller versions of the cables from the CIA. Three days later the Crown handed the defence copies with far fewer redactions. What, then, was contained in the previously concealed sections, which, in MacFadyen's view, was 'not relevant to the case or helpful to the defence'? Here's what.

    

There were repeated references not only to Giaka's desire for sham surgery, but also his repeated and successful pleas to the CIA to pay for it. One of the cables described him as 'something of a hypochondriac', while another noted his claim to be a distant relative of Libya's former leader King Idris. A further one revealed that he wanted the CIA to set him up in a car rental business in Malta and that he had saved $30,000 towards the venture. His handlers believed that much of the money had been acquired from illegal commissions and perhaps through low-level smuggling.

    

Crucially, there were references to other meetings with the CIA, for which no cables had disclosed. Eventually the CIA coughed up 36 more, about which MacFadyen and Turnbull were seemingly unaware.

    

The most telling fact concealed by the redactions was that the CIA had grown increasingly dissatisfied with Giaka. One noted that his information about the ESO's structure and administration 'may be somewhat skewed by his prolonged absence and lack of seniority'. Another revealed that he would be told: 'that he will only continue his $1,000 per month salary payment through the remainder of 1989. If [he] is not able to demonstrate sustained and defined access to information of intelligence value by January 1990, [the CIA] will cease all salary and financial support until such access can be proven again'.

    

A later section of the same cable noted: 'it is clear that [Giaka] will never be the penetration of the ESO that we had anticipated… [He] has never been a true staff member of the ESO and as he stated at this meeting, he was coopted with working with the ESO and he now wants nothing to do with them or their activities… We will want to ensure that [he] understands what is expected of him and what he can expect from us in return. [CIA] officer will therefore advise [him] at 4 Sept meeting that he is on "trial" status until 1 January 1990'.

    

Having analysed the unredacted sections, Richard Keen QC, respresenting Megrahi's co-accused, Lamin Fhimah, told the court it was 'abundantly clear' that much of the newly uncovered information was highly relevant to the defence, adding, 'I frankly find it inconceivable that it could have been thought otherwise... Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond'.

    

In order words, the Crown had been caught out misleading the court. I do not suggest that Boyd did so deliberately, neither that MacFadyen and Turnbull deliberately concealed evidence that they knew would by helpful to the defence. Motive is not the issue: what really matters is the quality of the Crown's judgement.

    

Armed with the new information and the 36 additional cables, Keen and Megrahi's counsel, Bill Taylor QC, were able to demolish Giaka's credibility and with it the case against Fhimah, who was acquitted. Had the court taken Boyd at his word and the redactions not been lifted, Giaka might have left the witness stand with his credibility intact and Fhimah may well have been convicted along with Megrahi.

    

The big remaining question raised by the MacFadyen memo is: was it an isolated failure of judgement or the tip of the iceberg? The SCCRC found numerous items of significant evidence which the Crown had failed to disclose to Megrahi's lawyers. Did the prosecutors also satisfy themselves in each instance 'that there was nothing omitted which could assist the defence'? Only a full public inquiry can adequately answer such questions. It is high time that Salmond's government ordered one. 

Lockerbie trial personnel

What follows is excerpted from an item originally posted on this blog on this date in 2008:

Where are they now?

[I]t has been reported that Megrahi's junior counsel at the Zeist trial, John Beckett, has been appointed a sheriff (a judge in Scotland's lower court system). Beckett became a QC in 2005 after the trial, and served briefly as Solicitor General for Scotland (deputy to the Lord Advocate, the chief Scottish Government law officer and head of the prosecution system) in 2006 to 2007. See http://www.scotland.gov.uk/News/Releases/2008/04/10100308

As far as the other lawyers involved in the trial are concerned, most remain in practice but two of the prosecutors, Alastair Campbell QC and Alan Turnbull QC, have become judges of the Scottish supreme courts (the Court of Session and the High Court of Justiciary); Megrahi's solicitor, Alistair Duff, has become a sheriff; and Richard Keen QC, the senior counsel for the acquitted co-accused, Lamin Fhimah, has been elected Dean of the Faculty of Advocates (leader of the Scottish Bar). The then Lord Advocate, Colin Boyd QC (later Lord Boyd of Duncansby) has taken the highly unusual step of resigning from the Faculty of Advocates and becoming a solicitor. He is now a partner in a large Edinburgh law firm.

The three judges who presided at the trial, Lords Sutherland, Coulsfield and MacLean, have all now retired from the bench.

[RB: Sheriff Alistair Duff is now Director of the Judicial Institute for Scotland; Richard Keen QC is now Baron Keen of Elie and Advocate General for Scotland; Colin Boyd QC is now a judge of the Court of Session and High Court of Justiciary; Lord Coulsfield died in March 2016.]

Judge questions Maltese bomb link

[This is the headline over a report published on the BBC News website on this date in 2002. It reads in part:]

An appeal court judge has questioned whether the evidence presented at the Lockerbie trial was sufficient to have convicted a Libyan secret service agent.

Abdelbaset ali Mohmed al-Megrahi was appealing at a special court in the Netherlands against his conviction for mass murder.

One of the five judges hearing the case, Lord Osborne, said the bomb which brought down Pan-Am Flight 103 may not have been loaded in Malta as the trial had heard.

But Alan Turnbull QC, for the Crown, insisted that there was enough circumstantial evidence to prove the Maltese connection.

Al-Megrahi was found guilty last year of loading a suitcase bomb in Malta, which was then transferred via Frankfurt onto Pan Am Flight 103. (...)

During the appeal hearing, Al-Megrahi's defence team argued there was doubt that the bomb started its journey in Malta.

The defence suggested that it was more likely to have been loaded at Frankfurt or Heathrow.

Lord Osborne accepted there was evidence that Al-Megrahi had worked for the Libyan secret service in Malta and had bought clothes there, fragments of which were found in the Lockerbie wreckage.

But he said that despite this, it was another matter to suggest the bomb had got onto the flight in Malta.

He said: "It is quite difficult, rationally, to follow how the [trial] court took the steps it did in saying we don't know how it got on to the flight, but it must have been there."

However, Mr [Turnbull] said that documentation from Frankfurt appeared to suggest the carriage of an unaccompanied bag.

"All that is left is the reconcile two apparently contradictory portions of evidence," he said.

"This is a criminal act, not an act of negligence. Procedures exist at airports to prevent this event occurring.

"This event did occur, procedures were subverted, the only question is where those procedures were subverted."

Lord Osborne then asked if a terrorist was more likely to draw up a plan which minimised the risk of flights being delayed or the bag getting lost in the system.

"Surely if one is determined to effect a criminal purpose of this kind, one would wish to take all reasonable steps to ensure that venture succeeded?" he asked.

Mr Turnbull said: "It is in the nature of an act of terrorism that it implies the ability and desire to take risks, both of detection and of failure."

He also dismissed defence claims about Heathrow being a more likely point of infiltration as "entirely subjective comment."

[RB: Here is something that I wrote in May 2011 when Lord Osborne retired from the bench:]

The judge in question, Lord Osborne, asked many penetrating questions during the course of the appeal and had the Crown struggling to provide answers.  Regrettably, the restricted compass within which Megrahi's then legal team chose to present the appeal meant that the court could not give effect to the weighty concerns raised by Lord Osborne and his colleague Lord Kirkwood.

Lockerbie judges “misdirected themselves”

[What follows is the text of a report that was published on the website of The Guardian on this date in 2002:]

The Libyan jailed for the Lockerbie bombing today launched his appeal against his conviction.

Abdel Baset al-Megrahi was found guilty of carrying out the 1988 atrocity in a lengthy trial at a specially-convened Scottish court in Holland last year.

But Megrahi's lawyers say that fresh evidence has since emerged which casts doubt on the guilt of the Libyan, who was ordered to serve a minimum of 20 years in prison.

The defence team opened its case this morning at the beginning of the appeal hearing, at the same special Scottish Court at Camp Zeist in Holland were he was convicted.

Megrahi, 49, who has been held in prison at the camp, a former US air base, since being sentenced last January, was granted leave to appeal in August.

A panel of five judges, headed by Lord Cullen, the Lord Justice General, was selected last week to hear the appeal, which is expected to last about three weeks.

Megrahi's lawyers issued a nine-page submission at the start of today's hearing, detailing their grounds for appeal.

The defence will launch a new attack on the evidence of Tony Gauci, a Maltese shopkeeper who identified Megrahi as a man who had bought clothing at his store a few weeks before the bombing. The clothing was packed in the same suitcase as the bomb.

Defence lawyers at the trial had questioned the reliability of Mr Gauci's evidence, and the panel of judges admitted he had not made an "absolutely positive" identification of Megrahi either in court or from photographs. There was no jury, and the judges decided the verdict in the case.

According to the prosecution's version of events, which was accepted by the judges in the trial, the suitcase carrying the bomb was loaded on to a plane in Malta. From there it was taken via Frankfurt to Heathrow, where it was loaded onto Pan Am flight 103.

Megrahi's defence team has always insisted the bomb suitcase was more likely to have been placed on board the plane at Heathrow and wants to introduce new evidence to support that claim.

The defence has fresh testimony from Heathrow security guard Ray Manly, who has claimed there was a break-in at the baggage area at the airport on December 21 1988, the same day Pan Am flight 103 took off from there bound for America.

William Taylor QC said that with the exception of the new evidence, the grounds of appeal constituted criticisms of the findings of the judges in their 82-page opinion, which was issued at the end of the original trial.

Mr Taylor said: "A judgment of this sort has never in modern times been issued in a criminal trial in this country." He added that he intended to show that the three judges had effectively misdirected themselves as jurors and led to a miscarriage of justice.

He said that a reasonable jury in an ordinary trial could not have reached that verdict if it was given proper directions by the judge.

Alan Turnbull QC, for the Crown, argued that the evidence was not sufficient to justify being heard in the appeal.

All 259 passengers and crew on Pan Am 103, as well as 11 people on the ground, were killed when the plane was blown out of the sky over the Dumfries and Galloway town in December 1988.

Megrahi's co-accused, Al Amin Khalifa Fhimah, a former station manager for Libyan Arab Airlines, was acquitted at the end of the original trial after the judges ruled there was no evidence he had helped plant the bomb.

Today's hearing made legal history as its opening scenes were shown live on television and the Internet, although broadcasters will be subject to a number of restrictions, including a ban on televising evidence from witnesses.

Yesterday the Foreign Office said US, British and Libyan government officials had met earlier this month to discuss compensation for the victims of the bombing. A spokesman said the talks, on January 10, had been held in a "constructive atmosphere".

Lockerbie accused 'given false passport'

[This is the headline over a report published on the BBC News website on this date in 2000. It reads in part:]

The Lockerbie trial has heard that one of the accused was issued with a false passport after security service chiefs sent an urgent request to the relevant authorities.

Abdelbaset Ali Mohmed Al Megrahi, 48, was given a "coded" passport in the name of Ahmed Khalifa Abdusamed, the Scottish Court in the Netherlands was told.

Maloud Mohamed Omar El Gharour, of the general passport and nationality department in Libya, said that in June 1987 his department received a letter from the external security services asking for a new "coded" passport for Al Megrahi.

Prosecuting counsel Alan Turnbull QC asked the witness: "What would you understand by a coded passport?"

Mr El Gharour said: "It means simply that the passport does not carry the original name of its holder."

He told the court that the letter requesting the passport asked for the matter to be dealt with "very urgently".

It said the name of the holder of the coded passport was Al Megrahi who was described as having the job of "collaborator civil".

However the profession listed for his false passport was to be "employee".

The false passport was issued on the same day as the urgent letter was received, Mr El Gharour said.

The Lockerbie indictment accuses Al Megrahi of travelling to Malta, where the bomb which blew up Pan Am Flight 103 is alleged to have originated, on various occasions in 1987 and 1988 using the false identity of Ahmed Khalifa Abdusamed.

Carol Butler, of the British Immigration Services, told the court that stamps in the Abdusamad passport showed the user arriving in Malta on 20 December 1988 and flying back to Libya the following day.

The passport was not used again after 20 December.

The trial is to be delayed again after "sensitive" information was given to the prosecution by a government.

In an unexpected development, Scotland's Lord Advocate Colin Boyd QC told the judges on Monday it was impossible to proceed without further enquiries.