Call to clear up Lockerbie doubt

[This is the headline over a report published on the BBC News website on this date in 2005. It reads in part:]

Lord Advocate Colin Boyd has asked one of his predecessors to clarify an apparent attack he made on a key witness in the Lockerbie trial.

Remarks by Lord Fraser of Carmyllie, who issued the indictment against two Libyans charged with the 1988 bombing, were reported in a Sunday newspaper.

Lord Fraser said he had attempted to correct the "erroneous interpretation" of his views on Tony Gauci's evidence.

He said he had written to Mr Boyd expressing his dismay over it. (...)

Abdelbaset Ali Mohmed al-Megrahi was convicted of smuggling a bomb aboard the New York-bound flight on 21 December, 1988.

The former Libyan intelligence officer was found guilty after a trial by a specially convened Scottish court at Camp Zeist in the Netherlands.

His co-accused, Al Amin Khalifa Fhimah, was acquitted.

On Friday, Mr Boyd said that remarks attributed to Lord Fraser expressed doubts about Mr Gauci, the Maltese shopkeeper who sold the clothing to Megrahi which was used to pack the bomb suitcase.

Mr Boyd said: "It was Lord Fraser who, as Lord Advocate, initiated the Lockerbie prosecution.

"At no stage, then or since, has he conveyed any reservation about any aspect of the prosecution to those who worked on the case, or to anyone in the prosecution service."

The lord advocate said that the position of the Crown both before and after Lord Fraser left office in 1992 had always been that Tony Gauci was a reliable and credible witness.

He said that the three High Court judges who saw Mr Gauci giving evidence said that they found him entirely credible.

Lord Fraser said: "I have already told the Crown Agent in two telephone calls that I have no aspersions to cast on Tony Gauci's evidence."

"Indeed such was the thoroughness of the investigation and the way in which it developed that I probably would place greater emphasis and credibility on Mr Gauci's evidence than any of my successors as lord advocate."

He added: "As the present lord advocate wholly correctly asserts, however, any view of mine is essentially irrelevant. What matters is the judgment of the court.

"Three of Scotland's High Court judges heard him give evidence properly subject to cross-examination and they were specific in their conclusion that he was entirely credible."

MacAskill prison visit absurd, says Lord Fraser

One of Scotland’s most respected legal figures has bitterly attacked Kenny MacAskill, the Justice Minister, for his decision to visit the convicted Lockerbie bomber in prison.

Lord Fraser of Carmyllie, who as Lord Advocate was responsible for drawing up the indictment in 1991 against Abdul Baset Ali al-Megrahi and his co-accused, described Mr MacAskill’s decision to go to Greenock Prison on August 5 as “absurd”.

Lord Fraser, who also led the public inquiry into the Scottish Parliament building cost scandal, said in a television interview that instead of going to see al-Megrahi, Mr MacAskill would have done better to have gone to the United States to explain his decision to free the Lockerbie bomber, who is suffering from terminal prostate cancer, on compassionate grounds.

He added: “The idea that he [Mr MacAskill] goes to Greenock Prison and he doesn’t get on a plane and go to Washington and explain his position to those who are really important ... just seems to me to be quite extraordinary ... I just think that was absurd.”

Lord Fraser, in the interview, made clear that he supported the decision to release al-Megrahi. His criticism was directed at the way the affair had been handled.

Mr MacAskill’s defence of his prison visit is that he was “duty bound” to go because of a commitment given by Jack Straw, the UK Justice Minister. Under the terms of the Prisoner Transfer Agreement, the prisoner must be given the opportunity to make representations. “Mr Al-Megrahi chose to do so in person,” Mr MacAskill said.

Mr Straw has denied this, saying that he only recommended that a prisoner make representations in writing.

[The above is the text of an article in today's edition of The Times.

The description of Peter Fraser as "one of Scotland’s most respected legal figures" will be causing unbridled mirth in the Scottish legal profession. He may be a respected figure, but it certainly is not for his eminence as a lawyer.

The visit by the Cabinet Secretary for Justice to Abdelbaset Megrahi became inevitable as soon as Mr MacAskill decided, presumably after taking advice from his officials, to take representations in person (and not just in writing) from interested persons, such as relatives of those killed on Pan Am 103. He could not, while complying with the requirement of procedural fairness incumbent upon him, offer the opportunity to make representations in person to categories of interested persons while denying that opportunity to the prisoner himself.

Are the politicians who have rushed to criticise Kenny MacAskill for meeting Abdelbaset Megrahi prepared to criticise him for meeting (in person in some cases, by video link in others) Lockerbie relatives? If not, their criticism is based on a misunderstanding of the legal position and reflects on them, not on Mr MacAskill.]

Ex Lord Advocate challenged over Pan Am 103 bribery

[This is the headline over a report published today on the website of Scottish lawyers' magazine The Firm. It reads as follows:]

The former Lord Advocate Lord Fraser of Carmyllie has been challenged by Dr Jim Swire to explain his position after he told an Al Jazeera documentary film crew that he accepted a key witness in the Pan Am 103 trial was bribed by Scottish Police.

Fraser, who was Lord Advocate at the time proceedings were raised against Abdelbaset Al Megrahi and acquitted co-accused Lhamin Khalifa Fhimah, acknowledged that Maltese shopkeeper Tony Gauci appeared to have been offered financial inducements for his testimony, which ultimately placed Megrahi in Malta, purchasing clothes linked to an explosive device.

Dr Swire said he had watched the documentary, which disclosed the revelations contained in police diaries, in "astonishment", and said that it added to "defects evident in the trial itself, which indicate a dire need for reappraisal of the trial verdict."

"The Al Jazeera programme used material from the diary of Detective Chief Inspector Harry Bell, who had performed a key role in the Scottish police inquiries in Malta. The documentary also highlighted the astonishing provision of 'all expenses paid' holidays in Scotland for the shopkeeper, before he gave his evidence," Swire said.

"During this documentary Lord Peter Fraser, who was Lord Advocate at the relevant times, explained that he was unaware of this offer of money to this key witness, at the time of the trial, but now that it seemed to have been shown to have been the case, he did not believe that the bribe, for such it surely was, had affected Gauci's evidence given under oath in court.

"It would appear to a layman that a bribed witness's evidence should be of little value in a criminal court where 'reasonable doubt' has to be excluded.

"Perhaps initially Lord Fraser would care to explain the position he took 'on camera'," Swire concluded.

Lord Fraser has not made any comment following the broadcast.

The Parliament's petitions committee will hear the fourth presentation from the Justice for Megrahi committee of their application for a full inquiry into the debacle on 28 June.

Swire's letter can be read in full, here.

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.]

‘Al-Megrahi defence knew bomb fragment was sent to US’

[This is the headline over a report in today's edition of The Times. It reads in part:]

A senior FBI investigator involved in the Lockerbie inquiry has entered the controversy over a vital piece of scientific evidence which secured the conviction of the Libyan bomber.

Richard Marquise, now retired, told The Times that a tiny bomb fragment at the heart of the prosecution case had been taken out of Scotland in the course of the investigation, and brought to Washington, where it was examined in the bureau’s laboratory. He said he believed it had also been taken to Germany His view appears to contradict a claim by Lord Fraser of Carmyllie, then Lord Advocate, who told a television documentary that to his knowledge, the fragment had never been outside Scotland. Lord Fraser, who led the prosecution, told a Dutch television crew that had evidence been sent abroad, the case against Abdul Baset Ali al-Megrahi would have been vulnerable.

Yesterday, however, Mr Marquise said no one denied that the fragment, part of the bomb’s timing device, had been examined by Scottish officials in the FBI laboratory in Washington, or that it had been scrutinised by experts in Germany. He added that these facts had been known by the defence team at the trial of al-Megrahi, who was convicted of planting the bomb aboard Pan Am flight 103, which exploded over Lockerbie in December 1988, killing 270 people, and dismissed the controversy as a “non-issue”.

“I do know it was never in the possession of the FBI but these Scottish/British officials examined PT-35 [the fragment] in the FBI lab in Washington,” he told The Times. “No one has ever tried to hide that fact.”

That information was not, apparently, known to Lord Fraser. Asked by the television team whether the fragment had been taken to the US, Lord Fraser responded: “Not that I am aware of.” He added: “What would have gone through my mind is ... 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 [it] has been fiddled with.”

The controversy erupted after the Crown Office responded to a freedom of information request from Christine Grahame, the SNP MSP for South of Scotland, confirming that the fragment had been sent for analysis to the Siemens company in April 1990.

Ms Grahame said Lord Fraser “did not know and would not have allowed this evidence to be taken out of Scottish jurisdiction and control”.

[I have now lost count of the number of different accounts of the movements of this item of evidence that have been given by Richard Marquise and Detective Chief Superintendent Stuart Henderson. Tracing and itemising them might be a nice research project for an enterprising law or journalism student.

Mr Marquise has e-mailed me the following response:

'I will try and make it simple for you---

'Marquise: told Levy in 2008 that the fragment came to US in custody and control of Scottish police/British forensic officials. Never out of their custody or control.
When he “cornered” me at Arlington, he said the Lord Advocate told him it never came to US. I told him there what I told him earlier in 2008 was what I thought the truth to be but perhaps I was mistaken (I did not see the fragment when it came to US in June 1990) I later clarified in an email that my first statement was correct.

'Henderson: as far as I know, the microphone in his face at Arlington in December 2008 was the first time Mr. Henderson ever said anything in public about Lockerbie. What he said was it was never in “US control.”

'In his official statement to prosecutors before trial, he acknowledged that it had traveled to the US for examination.

'Unfortunately, some things which happened over 20 years ago needed to be reflected upon. We are all aging and our recollections may not be perfect. However, I know one thing—none of us ever “fiddled with,” “tampered,” “changed,” “altered” or “manufactured” any evidence in this case to include PT-35.

'My brother once owned a football. He was so afraid it would get ruined, he kept it in the closet and never used it. It suffered “dry rot” and was eventually never useable. The same could be said about PT-35. Should police officials never shared its existence with anyone else, it might never have been identified. Try as they might, 6 months, 17 countries and 55 separate company visits failed to determine what it was. It was the sharing of the photograph and eventually the lab comparison which identified it.

'To listen to some in Scotland, this case should have been conducted ONLY by Scots without outside interference. It was only through the sharing of information that strides were able to be made to identify who was responsible for Lockerbie—despite what so many people do not want to believe. The sharing of information was vital to the Lockerbie case and is vital today as we try and prevent horrible acts of terrorism and other crimes.

'Those of us who have never taken money from anyone doing business in Libya are comfortable with that we did. Can you say the same? In the book, “The Price of Terror,” you are quoted as saying that you tried to resolve the (Lockerbie) deadlock at the behest of “a group of British businessmen whose desire to participate in major engineering works in Libya were being impeded by the UN sanctions.” Perhaps YOU were misquoted. Would you also like to get some law students on that as well?'

I am, of course, used to snide remarks to the effect that my stance on Lockerbie is due to my having been paid (which I have always thought a somewhat odd criticism to make of a lawyer). Here, from a forthcoming book, is the true account of how I came to become involved in the Lockerbie issue:

'I first became involved in the Lockerbie affair in January 1993. I was approached by representatives of a group of British businessmen whose desire to participate in major engineering works in Libya was being impeded by the UN sanctions. They had approached the then Dean of the Faculty of Advocates (the head of the Scottish Bar) and asked him if any of its members might be willing to provide advice to them -- on an unpaid basis! -- on Scottish criminal law and procedure in their attempts to unblock the logjam. The Dean of Faculty, Alan Johnston QC (later Court of Session judge Lord Johnston), recommended me. The businessmen asked if I would be prepared to provide independent advice to the government of Libya -- again on an unpaid basis -- on matters of Scottish criminal law, procedure and evidence with a view (it was hoped) to persuading them that their two citizens would obtain a fair trial if they were to surrender themselves to the Scottish authorities. There was, of course, never the slightest chance that surrender for trial in the United States could be contemplated by the Libyans, amongst other reasons because of the existence there of the death penalty for murder.']

Labour Government policy on Lockerbie prosecution

[What follows is an exchange that took place in the House of Lords on this date in 1997, shortly after the election of Tony Blair’s Labour government, between the new Lord Advocate, Lord Hardie, and one of his Conservative predecessors, Lord Fraser of Carmyllie:]

HL Deb 25 June 1997 vol 580 cc1571-3

Lord Fraser of Carmyllie asked Her Majesty's Government:

What is their policy concerning the prosecution of those responsible for the murder of those on flight PanAm 103 and of residents of Lockerbie in December 1988.

The Lord Advocate (Lord Hardie) My Lords, the Government's policy in relation to the prosecution of any crime is that those allegedly responsible should be brought before the courts having jurisdiction for such matters in order that the accused may receive a fair trial.

Lord Fraser of Carmyllie My Lords, the noble and learned Lord has not quite answered the Question that I put to him. As the new Administration takes up office and as the noble and learned Lord as the new Lord Advocate takes over responsibility for these matters, it would be helpful if a clear signal were given not only to this country but also to the rest of the world that the policy pursued by previous Lord Advocates will be maintained. Even in the absence of a clear answer from the noble and learned Lord, I hope I may ask him two questions. First, he will appreciate that as the public prosecutor in Scotland in that respect he does not share a collective responsibility with other ministerial colleagues but has a singular and possibly rather lonely duty to determine whether or not there should be a prosecution. Will he guard against any attempt, however well intentioned, to fetter that discretion for foreign policy or trade reasons?

Secondly, if the noble and learned Lord should determine at any stage that there should not be a prosecution in this matter, will he give an assurance that he will explain that to your Lordships' House? It is not just the relatives of those 270 people who died at Lockerbie who would like to know on what evidence the original decision was taken, but those of us who were involved in the prosecution and the original investigation, who have had our integrity impugned as conspiracy theory has piled upon conspiracy theory, would like the opportunity to reflect on how we would wish to take the matter forward.

Lord Hardie My Lords, I assure the House—as I did in my maiden speech—that I intend to guard the independence of the office which I hold. I assure the noble and learned Lord that I shall not allow anyone from any side of the House to fetter my discretion in any way. As regards reaching any decision, as the noble and learned Lord will be aware, I was involved, along with him, in the public inquiry into the Lockerbie disaster. Since taking up office I have had access to much information that was not available to me at that stage and which is not in the public domain. I can assure the House that I am satisfied on the information available to me that there is no reason not to proceed with the petitions. The noble and learned Lord will be aware that the situation is still fluid in the sense that if additional information becomes available any decision would have to be reviewed. I can also assure the noble and learned Lord that should it be decided that no prosecution will take place I shall return to the House and make a Statement to that effect.

Lord Bruce of Donington My Lords, can the noble and learned Lord tell the House whether Her Majesty's Government are in possession of any prima facie evidence indicating the identity of those responsible?

Lord Hardie My Lords, as the noble Lord may be aware, there are petition warrants which name two people. Those warrants were issued on the basis of information available linking them with the disaster which occurred.

Swire is victim of Stockholm Syndrome, says Lord Fraser

Lord Fraser of Carmyllie QC, the Lord Advocate in 1991 at the time when charges in respect of the destruction of Pan Am 103 were brought against Abdelbaset Megrahi, has been a busy little bee. Two Sunday newspapers, The Sunday Times and Scotland on Sunday run interviews in which he accuses Dr Jim Swire of suffering from Stockholm syndrome. Stockholm syndrome relates to the behaviour of kidnap victims who, over time, become sympathetic to their captors, and can, accordingly have no application whatsoever to Dr Swire. But why should Peter Fraser allow anything as trivial as accuracy get in the way of a good headline?

Dr Swire and Rev John Mosey attended virtually the whole of the proceedings in the Scottish Court at Zeist. Both of them, having heard the evidence, have the very gravest doubts about the justifiability of the conviction of Megrahi. Those doubts are shared by many others who have taken the trouble to consider the evidence and the trial court's written opinion. And, of course, the independent (and expert) Scottish Criminal Cases Review Commission has referred the case back to the Criminal Appeal Court on six grounds, one of which is that in respect of crucial findings in fact, no reasonable court could have reached those conclusions on the evidence led.

For Peter Fraser in these circumstances to suggest that a relative who doubts the validity of Megrahi's conviction is labouring under a psychological aberration such as Stockholm syndrome is outrageously insulting and casts more doubt on the psychological state of the maker of the statement than on that of the person at whom it is directed.

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.

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.

"Important and permanent" contribution to Lockerbie affair

[A report on the memorial service for Lord Fraser of Carmyllie was published yesterday on the STV News website.  It reads in part:]

Friends, family and former colleagues have paid their last respects at a thanksgiving service to Lord Fraser of Carmyllie, the former Conservative MP and Lord Advocate who died suddenly last month.

The peer served in Margaret Thatcher and John Major's governments and drew up the indictments against the two Libyan men accused of orchestrating the Lockerbie bombing. (...)

A string of Tory grandees filed in to Dundee Parish Church St Mary's for what was described as a moving and humorous tribute to one of the party's elder statesmen.

Scottish Conservative leader Ruth Davidson said: "It is a sad day. Peter was a huge personality and he served both in Parliament and in Government with great intelligence but also a great deal of wit and humour and that's what we remember today." (...)

Former foreign secretary Malcolm Rifkind said: "Peter had a lot of specialist knowledge to provide on legal issues.

"Obviously he was associated with the Lockerbie affair and put a huge amount of effort into that and made a fantastic and important and permanent contribution to that work, but more broadly he had a range of interests and, of course, in the later years in the House of Lords he was amongst other experts and I know they respected him greatly as well."

[A rather more balanced assessment of Peter Fraser’s career can be found here and here.]

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.]

Prologue to Aljazeera Lockerbie documentary

[I am grateful to Marcello Mega for allowing me to reproduce the following article, versions of which appeared today in the Scottish editions of The Times, the Daily Mail and The Sun:]

The former Lord Advocate who issued the indictment against the Libyan convicted of the Lockerbie bombing has accepted there is clear evidence that the key witness, a Maltese shopkeeper, was promised a fortune for his testimony.

Lord Fraser of Carmyllie QC, who was Scotland’s most senior prosecutor until 1993, announced in November 1991 that Abdelbaset Ali Mohmed Al Megrahi and his co-accused, Lamen Khalifa Fhimah, were wanted for the murder of 270 people on 21 December 1988.

Presented with documents showing that Scottish police officers and FBI agents had discussed as early as September 1989, ‘an offer of unlimited money to Tony Gauci, with $10,000 being available immediately’, Lord Fraser said: “I have to accept that it happened. It shouldn’t have and I was unaware of it.”

The former law officer said: “I remember a time when things were warming up and there was talk from the US about sending a squad into Tripoli to seize the suspects, rather as they did with Noriega in Panama.

“I had to warn them that if that happened there would never be a trial in any Scottish or UK court. I also warned our investigators that the eyes of the world were on us, and everything had to be done by the book.

“It would be unacceptable to offer bribes, inducements or rewards to any witness in a routine murder trial in Glasgow or Dundee, and it is obviously unacceptable to have done it in the biggest case of mass murder ever carried out in Europe.”

Lord Fraser said he had been asked before about allegations of inducements offered to Gauci, but had never before been presented with evidence of it.

Gauci was absolutely central to Megrahi’s conviction because the clothes recovered from the suitcase that carried the bomb onto Pan Am 103 at Heathrow, bound for New York, were traced back to his shop.

Although he never stated that Megrahi was the man who bought the clothes, his numerous statements and testimony in court saying he resembled the buyer was accepted as proof of his guilt by the three Scottish judges who sentenced him to life in 2001.

Megrahi was diagnosed with prostate cancer and released on compassionate grounds to die at home in August 2009, but remains alive almost two years later.

Evidence of the inducements made to Gauci has emerged during an investigation by a team working for Network Features on a new documentary on the questions that still surround the bombing.

Among the material unearthed are records of diary entries made by retired Detective Chief Inspector Harry Bell of Strathclyde Police. He was the Scottish officer with regular close contact with Gauci after the bomb-damaged clothes were traced to his shop.

At Megrahi’s trial at Camp Zeist in the Netherlands, Scottish detectives involved in the case were asked whether Gauci had ever been offered inducements for his testimony, and all denied it.

The Scottish Criminal Cases Review Commission conducted its own investigation into the case, which resulted in it being referred back for a second appeal - abandoned when Megrahi was freed. Unlike the trial court, it required police officers to produce notebooks and diaries.

Harry Bell’s diary reveals that reward money was discussed from September 1989 onwards, within days of Gauci being traced.

An extract quoted by the SCCRC from February 1991 reveals that Gauci was being treated to an expensive holiday. He wanted to invite his father along but was concerned about how to explain his ability to pay for it.

The diary extract says: “He was told to suggest the National Lotto as having won a prize.”

Also in February 1991, Bell told Det Chief Supt Jim Gilchrist, who was then the Senior Investigating Officer in the case, in a memo that ‘Tony Gauci has expressed interest in receiving money in recent meetings’.

The Commission also reported that Gauci’s brother, Paul, who made important witness statements, ‘had a clear desire to gain financial benefit’, and that ‘the US authorities offered to make substantial payments to Tony Gauci at an early stage’.

Its report confirms that after the trial, Tony Gauci received more than $2m and his brother more than $1m in reward money.

This contradicts assurances given publicly on many occasions by Richard Marquise, the lead FBI officer on Lockerbie, that ‘no witness in this case was ever promised or paid any money in return for their testimony’.

The Network Features investigation also reveals that key pieces of evidence originated in police laboratories and were introduced artificially to the chain of evidence, and that witness statements that interrupted the chain were altered or suppressed.

Gauci and Bell declined to be interviewed for the programme.

Lockerbie: The Pan Am Bomber? is broadcast tonight (Thursday 9th) on Al Jazeera English at 9pm.

[Today's Aljazeera English schedule can be viewed here.]

Scottish Parliament Written Answers

24 September 2010
Christine Grahame (South of Scotland) (SNP): To ask the Scottish Executive whether it will publish any information it holds related to payments reportedly made by US authorities to key witnesses either before or after the trial of Mr Abdelbaset Ali Mohmed Al Megrahi, specifically payments to Tony Gauci, in relation to evidence he gave into the bombing of Pan Am Flight 103 over Lockerbie.
(S3W-35942)
Rt Hon Elish Angiolini QC:
The only forum in which the Scottish Government or the Crown Office and Procurator Fiscal Service (COPFS) can make public any information connected to witnesses involved in the investigation and prosecution of the Lockerbie bombing is in judicial proceedings in Scotland.

Christine Grahame (South of Scotland) (SNP): To ask the Scottish Executive whether it is aware of comments by the former Lord Advocate, Lord Fraser of Carmyllie, who has stated publicly in a television interview for Dutch television in 2009 that he was not aware that the timer fragment known as PT35 was sent to the United States of America for examination by FBI officials and that he would have opposed such transportation of this fragment on the basis of concerns that it might be lost in transit or provoke accusations that it had been tampered with.
(S3W-35943)
Rt Hon Elish Angiolini QC:
I am aware of comments reported to have been made by my predecessor, Lord Fraser of Carmyllie.

The fragment of electronic timer recovered from the wreckage of flight Pan Am 103, known as PT35, was taken to the United States of America by Scottish police officers and a British forensic scientist in June 1990 as part of the investigation into the Lockerbie bombing. The fragment remained in the custody and control of the Scottish police officers and the British forensic scientist during the visit to the United States and was subsequently identified as having come from an electronic timer manufactured by a Swiss company, MEBO, to the order of the Libyan intelligence service.

Christine Grahame (South of Scotland) (SNP): To ask the Scottish Executive whether it is aware of the reported comments of former FBI scientist Frederic Whitehurst implying that the FBI laboratory in Washington DC may constitute an additional crime scene with regard to the bombing of Pan Am Flight 103 over Lockerbie. (S3W-35944)
Rt Hon Elish Angiolini QC:
There is no evidence of any criminal act having been carried out in relation to any of the forensic evidence in the Lockerbie investigation.

A fragment of electronic timer recovered from the wreckage of flight Pan Am 103, known as PT35, was taken to the FBI laboratory in Washington DC by Scottish police officers and a British forensic scientist in June 1990 as part of the investigation into the Lockerbie bombing. The fragment remained in the custody and control of the Scottish police officers and the British forensic scientist during the visit to the United States and was subsequently identified as having come from an electronic timer manufactured by a Swiss company, MEBO, to the order of the Libyan intelligence service.

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.