The forthcoming Megrahi appeal

[What follows is excerpted from a long document recently produced by the Crown in connection with the forthcoming posthumous appeal against the conviction of Abdelbaset al-Megrahi.]

On 6 March 2020 the Scottish Criminal Cases Review Commission referred the late Abdelbaset Ali Mohmed Al Megrahi’s 2001 conviction for the murder of 270 people in the Lockerbie bombing back to the High Court of Justiciary. (...)

The current appeal stems from an application made to the SCCRC by Mr Megrahi’s family in July 2017. In April 2018 the Commission accepted that application and began a full review of Mr Megrahi’s conviction. In their 2020 statement of reasons the Commission summarised the application by Mr Megrahi’s family as being based on 6 grounds, they were:

1. Insufficient Evidence;

2. Unreasonable Verdict;

3. Fresh Evidence, namely the Christmas Lights;

4. Non-disclosure;

5. Evidence relating to the Timer Fragment; and

6. Evidence relating to the Suitcase Ingestion.

On 6 March 2020 the Commission published their Statement of Reasons, a lengthy volume setting out the findings of their review, and in conclusion referred the conviction back to the High Court of Justiciary for an appeal hearing.

The Commission concluded that they could only refer the conviction back to the High Court on two of the above six grounds: Unreasonable Verdict and Non-Disclosure.

In June 2020 those representing the family of the late Mr Megrahi lodged their Grounds of Appeal at the High Court of Justiciary, thereby formally beginning the third appeal against conviction in this case.

The Appeal Court is bound in law to hear the appeal on the grounds of appeals in so far as they are in line with the Commission’s reference, and there is also provision for the appellants to argue that they should be allowed to argue further grounds of appeal not covered by the Commission’s reference.

The grounds to be argued at the appeal, also referred to as the scope of the appeal, were argued at the preliminary hearing on 21 August 2020.

The Preliminary Hearing called before Lord Carloway the Lord Justice General, Lady Dorrian the Lord Justice Clerk and Lord Menzies at the Appeal Court on 21 August 2020. This was a virtual hearing of the Appeal Court. Submissions were heard from the Appellants, the Crown and on behalf of the Advocate General. (...)

The Grounds of appeal were numbered Part 1, and Part 2, A – D. Arguments were made by both sides as to the scope of the appeal and whether additional grounds of appeal, which did not form part of the SCCRC’s referral, could be argued in the appeal. The grounds of appeal which were matters referred by the SCCRC were automatically included in the scope of the appeal and no arguments were made in relation to them. These are:

Ground 1 - that no reasonable jury could have convicted Mr Megrahi based on the evidence;

and

Ground 2 Part A - the non-disclosure of information in relation to the evidence of Crown Witness Antony Gauci.

A number of documents were listed in support of Ground 2 Part A. However, one of them, (described as Part A, para 14 in the Grounds of Appeal), was not included in the SCCRC referral and has now been excluded by the Court from the appeal.

The Appellants argued that additional grounds of appeal in addition to the Commission’s grounds of referral should also be admitted, namely:

Ground 2 Part B - the non-disclosure of information in relation to the witness Abdul Majid, also known as Giaka;

Ground 2 Part C - the non-disclosure of information contained in protectively marked documents; and

Ground 2 Part D - the non-disclosure of other information which shows there was no effective system of disclosure to ensure a proper procedural safeguard to guarantee the right to a fair trial. This information was further divided into 7 distinct areas.

Parts B, C and D (and also one item from Part A) did not form part of the reasons for the referral by the SCCRC. They were points that the SCCRC considered and have commented on within their Statement of Reasons but which they did not consider were in the interest of justice to refer. The SCCRC did say, however, that the appellants might seek to include them within an additional ground of appeal.

The Crown position at the hearing in respect of the potential additional grounds of appeal inGround 2, Part A (item 14), Part B, Part C and one of the 7 areas in Part D was that whilst recognising it was ultimately a matter for the Court, the preference was that they were heard in the full appeal hearing because the Crown would wish to answer the points and consider it is in the interests of justice to do so because to leave the points unanswered may affect public confidence in the safety of Mr Megrahi’s conviction and the administration of criminal justice in Scotland more generally. In relation to part D above, the Crown asked for all but one of the 7 examples given to be excluded from the scope of the appeal.

After hearing all the arguments, the Court made avizandum (this means a pause) while they considered their decision. On 26 August 2020 the Court issued their decision on the scope of the appeal, and set out the procedure to be followed:

1. They allowed Mr Megrahi’s son, Ali Abdulbasit Ali Almaqrahi to bring the appeal on behalf of his late father.

2. They also allowed the appellants to proceed with some additional grounds of appeal that did not relate to any of the reasons set out by the SCCRC in its 2020 Statement of Reasons. These are as follows:

a) The Court allowed Ground 2, Part B to be heard at the appeal as an additional ground. This is with regard to information relating to the witness Abdul Majid, also known as Giaka.

b) In respect of Ground 2, Part C, which related to information contained in the protectively marked documents, the court has not made a final decision about whether this will form a ground of appeal yet. Instead, it ordered that the documents in question be produced to the court and that a special hearing be fixed in a closed court in order to consider whether the Public Interest Immunity Certificate granted in respect of the documents should remain in place. A hearing took place on 11 November 2020. The result is awaited (...) [RB: On Friday, 20 November the High Court published its decision upholding the UK Government's claim of public interest immunity. Accordingly this proposed ground of appeal falls.]

c) With regard to Ground 2, Part D, in which the appellants argued that there was not an effective system of disclosure to ensure that Mr Megrahi had received a fair trial, the court refused to allow this, excluding all 7 parts of it and the wider argument. It stated that it would not allow any ground of appeal to proceed which related to "system of disclosure which was not fit for the purpose of ensuring that all relevant information was identified and disclosed", the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the respondent” (the Crown).

d) The court also set out that the hearing will start on Tuesday 24 November 2020 and the three following days. 

The Appeal Court will sit at 10am UK time from Tuesday 24th until Friday 28th [sic] November 2020. 

A bench of five Judges of the High Court of Justiciary will hear the full appeal hearing and rule on the merits of the appeal. They will be: 

The Right Hon Lord Carloway, the Lord Justice General

The Right Hon Lady Dorrian, the Lord Justice Clerk

The Right Hon Lord Glennie 

The Right Hon Lord Menzies

The Right Hon Lord Woolman.

The Crown will be represented at the appeal by three Advocate Deputes: 

Ronnie Clancy QC

Douglas Ross QC  

Nick Gardiner. 

They also represented the Crown in the 2007-2009 appealfollowing the SCCRC’s 2007 reference  which was ultimately abandoned by the appellant. At the appeal hearing, as senior Crown Counsel, Ronnie Clancy QC will make the Crown’s submissions to the Court.

The appellants will be represented by Senior Counsel and Junior Counsel. They are respectively:

Claire Mitchell QC

Claire Connelly.

[RB: It appears that the hearing will once again take place by means of WEBEX, a video conferencing online application. Log-in information for members of the public wishing to follow the proceedings (audio only) is to be found here.]

Thirteen years of Crown obstruction and obfuscation

This blog is thirteen years old today.

I started the blog in 2007 just after the Scottish Criminal Cases Review Commission had referred Abdelbaset Megrahi’s conviction back to the High Court of Justiciary for a further appeal. It seemed to me that a commentary on the appeal process would be of some value. My expectation was that, even allowing for the law’s notorious delays, the blog would not be needed for longer than two years -- or two-and-a-half at the outside. Foolishly, of course, I gravely underestimated the Crown Office’s ingenuity in delaying proceedings (with the connivance or condonation of the appeal judges) and the obstructiveness of the then UK Government in the persons of the Foreign Secretary, David Miliband, and the Advocate General for Scotland, Lord Davidson of Glen Clova QC. The result was that the appeal hearing had only barely got into its stride when Megrahi’s illness led to his abandoning the appeal and being released on compassionate grounds in August 2009. So the Megrahi case lingers on, as does this blog. Perhaps the appeal resulting from the current SCCRC reference back to the High Court will enable the case and this blog to be decently buried. But don’t expect it to be anytime soon.

The first item to appear on this blog was the text of an article published by me in a legal journal: Lockerbie: A satisfactory process but a flawed result. What follows is the second item published in the blog on the same day.

The SCCRC Decision

On 28 June 2007 the Scottish Criminal Cases Review Commission referred Abdel Basset Al-Megrahi’s conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, to the Crown and to the High Court) extends to over 800 pages, accompanied by thirteen volumes of appendices. The Commission, in the published summary of its findings, rejected submissions on behalf of Megrahi to the effect that evidence led at the trial had been fabricated and that he had been inadequately represented by his then legal team, but went on to indicate that there were six grounds upon which it had concluded that a miscarriage of justice might have occurred. Strangely enough, however, only four of these grounds are enumerated in the summary. They are as follows:

“A number of the submissions made on behalf of the applicant challenged the reasonableness of the trial court's verdict, based on the legal test contained in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Commission rejected the vast majority of those submissions. However, in examining one of the grounds, the Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House, took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.

“New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in thearea of Sliema in which Mary's House is situated. In the Commission's view,taken together with Mr Gauci's evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant was in Malta.

“Additional evidence, not made available to the defence, which indicates that four days prior to the identification parade at which Mr Gauci picked out the applicant, he saw a photograph of the applicant in a magazine article linking him to the bombing. In the Commission's view evidence of Mr Gauci's exposure to this photograph in such close proximity to the parade undermines the reliability of his identification of the applicant at that time and at the trial itself.

“Other evidence, not made available to the defence, which the Commission believes may further undermine Mr Gauci's identification of the applicant as the purchaser and the trial court's finding as to the date of purchase.”

The implications for the verdict of guilty

The reasons given by the Commission for finding that a miscarriage of justice may have occurred in this case are not limited to the effect of new evidence which has become available since the date of the original trial and the non-disclosure by the police and prosecution of evidence helpful to the defence.    The prima facie miscarriage of justice identified by the Commission includes the trial court’s finding in fact on the evidence heard at the trial that the clothes which surrounded the bomb were purchased in Malta on 7 December 1988 and that Megrahi was the purchaser.  This was the very cornerstone of the Crown’s case against him.  If, as suggested by the Commission, that finding in fact had no reasonable basis in the evidence, then there is no legal justification whatsoever for his conviction by the trial court.

The implications for the Scottish criminal justice system

The present writer has always contended that no reasonable tribunal could have convicted Megrahi on the evidence led at the trial.  Here is just one example of the trial court’s idiosyncratic approach to the evidence.  Many more could be provided.

A vitally important issue was the date on which the goods that surrounded the bomb were purchased in a shop in Malta.  There were only two live possibilities:  7 December 1988, a date when Megrahi was proved to be on Malta and 23 November 1988 when he was not. In an attempt to establish just which of these dates was the correct one, the weather conditions in Sliema on these two days were explored. The shopkeeper’s evidence was that when the purchaser left his shop it was raining so heavily that his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi.  The unchallenged meteorological evidence led by the defence established that while it had rained on 23 November at the relevant time, it was unlikely that it had rained at all on 7 December; and if there had been any rain, it would have been at most a few drops, insufficient to wet the ground.  On this material, the judges found in fact that the clothes were purchased on 7 December.

On evidence as weak as this how was it possible for the trial court to find him guilty?  And how was it possible for the Criminal Appeal Court to fail to overturn that conviction?  The Criminal Appeal Court dismissed Megrahi’s appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court’s factual findings at all (though it is clear from their interventions during the Crown submissions in the appeal that at least some of the judges were only too well aware of how shaky certain crucial findings were and how contrary to the weight of the evidence).

It is submitted that at least part of the answer lies in the history of the Scottish legal and judicial system.  For centuries judges have accorded a specially privileged status to the Lord Advocate.  It has been unquestioningly accepted that, though a political appointee and the government’s (now the Scottish Executive’s) chief legal adviser, he (now, of course, she) would at all times, in his capacity as head of the prosecution system, act independently and without concern for political considerations and would always place the public interest in a fair trial above the narrow interest of the prosecution in gaining a conviction.  This judicial vision of the role of the Lord Advocate was reinforced by the fact that, until the Scottish Judicial Appointments Board commenced operations in 2002, all Scottish High Court Judges (and sheriffs) were nominated for appointment to the Bench by the Lord Advocate of the day.  This meant that, in all criminal proceedings, the presiding judge owed his position to the person (or one of his predecessors in office) who was ultimately responsible for bringing the case before him, and for its conduct while in his court.

The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism -- indeed casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction. To illustrate this in the context of the Lockerbie trial it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the United States under a witness protection programme.

Giaka’s evidence was ultimately found by the court to be utterly unworthy of belief. This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony. Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been immensely more difficult and perhaps impossible.

Yet the Crown strove valiantly to prevent the defence obtaining access to these cables.

At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC,  stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.

Mr Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid… On all of these matters, the learned Advocate Depute reached the conclusion 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... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."

One of the judges, Lord Coulsfield, then intervened: "Does that include, Lord Advocate ... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"

The Lord Advocate replied:  “Well, I'm just checking with the counsel who made that...  there is nothing within the -- -- 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 on these matters."

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety.  Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

Beyond the Lockerbie trial, the failure of the Crown to place the public interest in a fair trial above the interest of the prosecution in obtaining convictions is illustrated by the extent to which the Lord Advocate has recently had to be dragged, kicking and screaming, through the Privy Council in London before making available to the defence material in the prosecution’s possession that no-one could conceivably deny was of relevance and assistance in the accused person’s defence: see Holland v HMA 2005 SCCR 417;  Sinclair v HMA 2005 SCCR 446. So much for the fairness of the trial being the Crown’s primary and predominant motivation!

“When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.” I Corinthians xiii.11. It is high time for all involved in the Scottish criminal justice system to put away childish things. All of us, judges included, are surely too old to believe any longer in fairy tales. Fairy tales can be convenient and comforting and can bolster our self esteem. But, as in the case of the belief that the Crown can uniformly be relied upon always to act selflessly in the public interest, they can be dangerous and, if acted upon, work terrible injustice.

It is submitted that the Lockerbie case demonstrates just how necessary it is, if public confidence is to be maintained, for the Scottish Executive to institute a high-powered, independent, investigation into all three aspects – investigation, prosecution and adjudication -- of the Scottish criminal justice system.

Fred Burton and the Lockerbie case

[This is the headline over an article published today on Dr Ludwig de Braeckeleer's Intel Today website. The full text can (and should) be read here. The following are extracts:]

In his best-seller book Ghost, Mr Fred Burton — Stratfor Vice President of Intelligence — makes a truly extraordinary statement regarding the Lockerbie Case. If true, Burton’s allegation totally destroys the credibility of the ‘official story’ as narrated by FBI Richard Marquise, who led the US side of the Lockerbie investigation. (...)

During the Lockerbie investigation, detectives from Britain, the United States and Germany examined computer records at Frankfurt airport.

They concluded that an unaccompanied Samsonite suitcase — thought to have contained the bomb — arrived on 21 December on Air Malta Flight KM 180 before being transferred on to Flight 103.

This evidence led Britain and the US to charge two Libyan Arab Airlines employees who had worked in Malta  — Lamen Khalifa Fhimah and Abdel Basset Ali Al-Megrahi — with putting the suitcase on Flight KM 180.

In his best-seller book Ghost, Mr Burton — a former deputy chief of the DSS counterterrorism division — claims that the CIA told him — a few days after the bombing of Pan Am 103 — that the bomb (located in a Samsonite suitcase) had come from Malta Airport. REPEAT: “A few days after the bombing of Pan Am 103.”

The key Frankfurt document — printed by an airport employee named Bogomira Erac — was given to the German BKA in February 1989. This document was not shared with the Lockerbie investigators until the end of the summer 1989. (Richard Marquise – SCOTBOM page 50).

So, if Mr Burton tells the truth about his CIA contact, we have a serious problem.

How on earth could the Agency have known in December 1988 about the Malta-Frankfurt route when the ‘evidence’ about it only appeared eight months later?

Burton’s extraordinary allegation would imply that the Lockerbie investigators were led by the nose to the ‘Libyan culprits’. (...)

As I have explained in the past, I do believe that Libya was framed for the Lockerbie bombing. But the decision to frame Libya did not occur before the summer of 1989.

For the record, Giaka — the CIA asset in Malta — NEVER told the CIA anything regarding a Samsonite suitcase brought by Megrahi and/or Fhimah to Malta airport.

As I explained recently, Giaka did not report this event because he never witnessed it. The debriefing with his CIA handler did NOT occur in the morning of December 20 but in the afternoon, between 12:00 and 18:00. Megrahi and Fimah arrived in Malta with Flight KM 231 which landed in Luqa airport at 17:15.

As a matter of fact, the CIA stopped paying Giaka because he had no useful information to pass.

The SCCRC has recently accepted to review the Lockerbie case. If Mr Burton’s extraordinary allegation can be proven, then obviously, Megrahi was framed as many experts suspect.

Of course, the study of the key piece of evidence (PT35b) has already demonstrated that much.

There are good reasons to believe that the conviction of Megrahi was a shameful miscarriage of justice

[What follows is excerpted from an article by Kim Sengupta published today on the website of the Belfast Telegraph (and a week ago behind a paywall on the website of The Independent):]

Abdelbaset al-Megrahi lay in his bed attached to a drip, on red sheets stained by dark splashes of blood he had coughed up. An oxygen mask covered his skeletal face; his body twitched as he drifted in and out of consciousness. He was in the advanced stages of cancer: medicine he desperately needed had been plundered by looters; the doctors who had been treating him had fled.

This was in Tripoli in the winter of 2011, in the turmoil of Libya's civil war and the chaotic aftermath of the fall of Muammar Gaddafi. It was a time of great violence. A dozen bodies were piled up beside a roundabout a half-mile from where I had seen Megrahi lie slowly dying. They were corpses of black men, lynched by the rebels because they were supposedly mercenaries fighting for the regime. In reality, they were victims of a xenophobia against African migrants which had accompanied the uprising.

Megrahi himself had been convicted of a dreadful massacre; of being responsible for 270 deaths on December 21, 1988, when Pan Am Flight 103 blew up over the town of Lockerbie in Scotland. A bomb - 12 ounces of Semtex in a Toshiba radio-cassette player - had been secreted in the luggage of the plane carrying passengers to the US, many returning home for Christmas.

After spending eight years in Scottish prisons following his conviction, Megrahi had been returned to Libya on compassionate grounds following a diagnosis of prostate cancer. After a few months in prison in Tripoli, unable to walk and bedridden, he was allowed to return to his family home.

There was vengeful anger expressed by some in Britain, and more so in the US, at Megrahi's return to Libya. He had faked his illness, it was claimed, and even if that was not the case, he had escaped justice by not actually dying in a cell.

The charge of subterfuge was reinforced by the perception that his release was part of the many dodgy deals between Tony Blair's government and Colonel Gaddafi's regime.

Yet there are good reasons to believe that the conviction of Megrahi was a shameful miscarriage of justice and that, as a result, the real perpetrators of one of the worst acts of terrorism in recent history remained free. That certainly was the view of many, including international jurists, intelligence officers, journalists who followed the case, and members of bereaved families.

Among the latter group was Jim Swire, who lost his daughter, Flora, in the bombing. Dr Swire, a man of integrity and compassion, who became a spokesman for UK Families 103, stressed that "the scandal around Megrahi is not that a sick man was released, but that he was even convicted in the first place. All I have ever wanted to see is that the people who murdered my daughter are brought to justice".

Megrahi died in May 2012, a few months after I had seen him. Yet a campaign Dr Swire had helped set up, Justice for Megrahi, continues to help the Libyan's family to seek a new appeal against the sentence in their efforts to posthumously clear his name.

Certainly, the chronology of the original investigation into the bombing is strange, raising serious questions about the official narrative.

Soon after the downing of the Pan Am flight, American and British security officials began laying the blame on an Iran-Syria axis. The suggested scenario was that Tehran had taken out a contract in revenge for the destruction of an Iranian civilian airliner (Iran Air Flight 655), which had been shot down by missiles fired from an American warship (the USS Vincennes) a few months earlier.

The theory went that the contract had been taken up by the PFLP-GC (Popular Front for the Liberation of Palestine-General Command), which specialised in such operations.

The blame switched to Libya - which was then very much a pariah state - around the time Iran and Syria joined the US-led coalition against Saddam Hussein in the first Gulf war.

Robert Baer, the former American intelligence officer and author, was among those who held that an Iranian-sponsored hit was the only plausible explanation for the attack. This was the firm belief held "to a man", he stated, by his former colleagues in the CIA.

After years of wrangling, Megrahi, the former head of security at Libyan Airlines and allegedly a Libyan intelligence officer, was finally extradited in 1999 - along with another man named as a suspect over the bombing, Lamin Khalifa Fhimah, also allegedly employed by Libyan intelligence. (...)

I covered their trial at Camp Zeist in the Netherlands, which took place in a specially constituted court, with a panel of Scottish judges but without a jury, under Scots law. The two men were effectively charged with joint enterprise - conspiracy - yet only Megrahi was found guilty. (...)

The prosecution evidence was circumstantial, details of the bomb timer on the plane were contradictory, and the testimony of a key witness, a Maltese shopkeeper, was extremely shaky under cross-examination.

Five years on from the trial, the former Lord Advocate, Lord Fraser of Carmville, who had been responsible for initiating the Lockerbie prosecution, famously described the witness, Tony Gauci, as "an apple short of a picnic" and "not quite the full shilling".

The performance and evidence of a supposedly prime CIA intelligence asset, Abdul Majid Giaka, codenamed Puzzle Piece, who turned up in a Shirley Bassey wig, was widely viewed as risible. It emerged later that important evidence had not been passed on to the defence lawyers. Ulrich Lumpert, an engineer who testified to the validity of a key piece of evidence, admitted later in an affidavit of lying to the court.

The observer for the UN at the trial severely criticised the verdict, as did many lawyers. Robert Black, a law professor born in Lockerbie, who played an important role in organising the Camp Zeist proceedings, later became convinced that a great injustice had taken place. (...)

Fr Patrick Keegans had just been appointed as parish priest in Lockerbie and was looking forward to his first Christmas there at the time of the crash. His tireless work with the traumatised community drew wide praise and is remembered with gratitude.

He reflected: "For those of us who experienced Lockerbie, the story will never come to an end. Lockerbie lives with us, we are part of Lockerbie and Lockerbie is part of us... the horror, the tragedy, the sadness, the grief, the support and the love that was shown - all of that stays with us."

Fr Keegans, who is now retired, joined the Justice for Megrahi campaign after meeting the convicted man's family and is now backing the call for a fresh appeal.

"I can't live with myself being silent," he explained, "when I'm truly convinced that this man has been unjustly convicted. Lockerbie is an unfinished story as far as the legal aspects are concerned."

Megrahi died at his home in Tripoli, still protesting his innocence. He thanked Dr Jim Swire and others who had believed in him.

In his final days, he said: "I pray for all those who died every day. I shall be meeting my God soon, but the truth will come out.

"I really hope the truth of what really happened will come out one day."

Three decades on and so many questions remain

[This is part of the headline over a long report by Chris Marshall in today's edition of The Scotsman. It reads in part:]

Thirty years on since the downing of Pan Am Flight 103, there remains as many questions as there have been answers about what took place that night.

From the bombing itself – the deadliest terrorist atrocity ever carried out in Britain – to the trial at Camp Zeist in the Netherlands and the jailing and subsequent release of Abdelbaset Ali Mohmed al-Megrahi, the night of 21 December, 1988 has come to define much that has happened since.

And while there are those satisfied of Megrahi’s guilt, there are others convinced of his innocence, and others still who believe the full truth of what took place may never be known. (...)

The youngest victim onboard the plane was two-month-old Brittany Williams, of New York; the oldest, Ibolya Gabor, 79, from Budapest, Hungary, who had survived two world wars and was travelling to Los Angeles to spend Christmas with her family. Other passengers included Bernt Carlsson, 50, the UN Commissioner for Namibia and Matthew Gannon, the CIA’s deputy station chief in Beirut.

There were a number of claims of responsibility in the immediate aftermath of the bombing, some far more credible than others.

A painstaking investigation carried out by Dumfries and Galloway Constabulary and the Air Accident Investigation Branch (AAIB) set about reconstructing the plane from fragments of wreckage scattered across more than 2,000 square kilometres.

The murder inquiry would see officers travel to 23 different countries, identifying victims, speaking to witnesses and gathering evidence.

From the wreckage, fragments of a Samsonite suitcase were recovered which it was thought had been used to conceal the bomb.

Clothing from the same suitcase was found to have come from a shop in Malta owned by Tony Gauci, who later would controversially identify Megrahi as the man who had bought the items.

Megrahi, an intelligence officer, had a role as chief of security for Libyan Arab Airlines, allowing him regular travel to Malta where the company had an office. It was here, prosecutors would later argue, that Megrahi bought the clothing used to help hide the bomb which was to bring down Pan Am Flight 103. Using fake passports [RB "coded" not "fake"], he was also able to travel to Zurich where the timer for the bomb was made. [RB: The only evidence at the trial that Megrahi was an intelligence officer came from Majid Giaka, whose evidence on every other issue was dismissed by the court as utterly unworthy of credit. The court gave no reason for accepting his testimony on this one point.] 

The police investigation, which had taken around 15,000 witness statements, eventually led to Libya, and both Megrahi and his compatriot, Al Amin Khalifa Fhimah, were indicted for the bombing by the Lord Advocate and US attorney-general in 1991.

It was to be a further eight years, however, amid heavy pressure in the form of UN sanctions, before Libyan leader Muammar Gaddafi agreed to hand over the two men for trial. [RB: The Libyan Government had never objected to the suspects standing trial in Scotland. It was the lawyers for the suspects -- Libyan and international, including Scottish -- who objected. The true story of how the Zeist trial came about can be read here.]

After protracted negotiations, it was decided the two Libyans would be tried under Scots law, but at a neutral location. Nelson Mandela met with Jim Swire, who became a spokesman for the UK families, and helped broker the deal. A former US Air Force base at Camp Zeist near Utrecht in the Netherlands was chosen and the trial got under way on 3 May, 2000 – nearly 12 years after the bombing.

On 31 January the following year, Megrahi was convicted of murder by a panel of three Scottish judges and sentenced to a minimum of 20 years behind bars. Fhimah was acquitted. But if observers thought that was to be the end of the legal case, they were wrong – it was only just beginning. (...)

An initial legal appeal was refused, but in September 2003 Megrahi applied to the Scottish Criminal Cases Review Commission (SCCRC) asking for a review of his conviction. Nearly four years later, the SCCRC announced it would be referring the case to the Court of Criminal Appeal after it found Megrahi “may have suffered a miscarriage of justice”.

The Libyan applied to have the appeal dropped, however, shortly before it emerged he was to be controversially released on compassionate grounds by then Justice Secretary Kenny MacAskill. Despite a doctor’s assessment that Megrahi, who had terminal prostate cancer, had only three months to live, he would survive for a further three years after his return to Libyan, his life reportedly extended by a drug which at that point was not available to Scottish cancer sufferers on the NHS.

Despite Megrahi’s death, attempts continue to overturn his conviction. Earlier this year, the SCCRC began reviewing his conviction for a second time, saying it believed Megrahi had abandoned his earlier appeal because he thought it would result in him being released from prison and allowed to return home to Libya.

Back in Lockerbie, only the memorials to the dead remain as visible signs of the terror that came from the skies one December night 30 years ago. But while the houses of Sherwood Crescent have been rebuilt and life has gone on, the story appears far from finished.

Compensation could be sought for Megrahi's imprisonment

[What follows is excerpted from a report headlined Lockerbie Convict's Family Demands Acquittal Following New Evidence in Case that was published today on the website of the Saudi-owned Arabic newspaper Asharq Al-Awsat:]

The family of Libyan intelligence officer Abdelbaset al-Megrahi demanded compensation for the period he spent in prison after new claims emerged that Iran may have been behind the 1988 downing of the US airplane in Lockerbie. [RB: (a) These are not new claims, but have been common currency for very many years; (b) the only evidence at the Zeist trial that Megrahi was an intelligence officer came from the CIA asset Majid Giaka whose testimony, except on this one point, was dismissed by the judges as utterly incredible.]

The Daily Mail published excerpts of a book by US author Douglas Boyd where he charged that Iran was behind the bombing of Pan Am Flight 103. (...)

[Megrahi] was released from jail in 2009 on compassionate grounds after he was diagnosed with prostate cancer. He died in 2012.

Lawyer Ghada Abdelbaset al-Megrahi demanded on behalf of her family compensation for each hour her father spent in British prisons.

Ahmad Hamza, of Libya's National Commission for Human Rights (NCHR), said Boyd's book may have leaked facts and information that acquit Libya’s former regime and condemn Iran. [RB: The articles that have so far appeared have produced no new facts or information. Whether the book itself does so will be seen only once it is published later this month.]

He told Asharq Al-Awsat that the Iranian regime adopts policies and practices that target the safety and stability of the West, United States and Arab countries. 

He said that the Libyan authorities can seek compensation from the international judiciary for the damage caused to the country over the Lockerbie case.

The official authorities in Libya had yet to comment on Boyd’s allegations, but many political and judicial circles have been demanding that the truth be revealed in the case.

How the whole world was sold a monstrous lie over Lockerbie

[This is part of the headline over a long article published in today's edition of the Mail on Sunday. The article, which advances the familiar proposition that responsibility for the Lockerbie atrocity rests with the PFLP-GC acting on behalf of Iran, is condensed from a forthcoming book Lockerbie: The Truth by Douglas Boyd which is due to be published on 11 October 2018. The following are a few paragraphs from the Mail on Sunday article:]

With a loss of 259 lives on board and 11 more on the ground, the destruction of Maid of the Seas, blown up by a terrorist bomb on December 21, 1988, was the worst civil aviation disaster in British history. Yet 30 years later, we still do not officially know who is responsible for mass murder high in the air above a small Scottish market town preparing for Christmas.

There was, of course, a fall guy. Eleven years after the atrocity, a 47-year-old Libyan Arab Airlines security officer called Abdelbaset al-Megrahi was convicted on a tissue of lies which centred on the evidence of a Maltese shopkeeper who claimed to remember him buying clothes similar to those that may have been in the suitcase with the bomb that would rip through the fuselage.

A low-level Libyan CIA ‘asset’ called Abdul Majid Giaka said he recalled seeing al-Megrahi collect a brown Samsonite suitcase from the Arrivals carousel in Malta’s Luqa airport on December 20, 1988. On the following morning, he alleged, the unaccompanied suitcase was loaded on to a flight to Frankfurt, from where it would be transferred to London on a Pan Am ‘feeder flight’ and loaded aboard Flight 103 – before then exploding.

A further 11 years later, al-Megrahi was sentenced to life imprisonment at an extraordinary trial held in a disused American air base near Utrecht, Holland.

After years investigating the Lockerbie disaster and its background, I have found that little of the evidence against him can be taken at face value. Instead, a very different story has emerged from the morass of lies, one that should have been apparent from the very start.

It is a story of incompetence, vengeance, political expediency and then a cover-up orchestrated from the very highest levels in London and in Washington – where the real bomber is said to live today, under the cover of an American witness protection scheme.

[RB: The "real bomber" is said by the author to be Basel Bushnaq, alias Abu Elias. This is not by any means a new claim. Indeed Bushnaq was named by Christine Grahame MSP in the Scottish Parliament on 2 September 2009 (Official Report, columns 19051 to 19053). There is lots about him to be found here on The Lockerbie Divide website.]

The Crown and the CIA

[This is the headline over an article authored by me that was published on this date in 2000 on TheLockerbieTrial.com website which Ian Ferguson and I ran during the period of the Zeist trial and first appeal. It reads as follows:]

When the trial resumed on Tuesday 22 August [2000], the defence teams complained to the Court that they had just learned the previous day that certain CIA cables relating to the Libyan defector Abdul Majid Giaka, which they had thought had been made available to both the prosecution and the defence only in a censored or redacted form, had in fact been seen by members of the prosecution team on 1 June 2000 in uncensored or unredacted form.  The defence contended that the principle of equality of arms enshrined in article 6 of the European Convention on Human Rights required that the defence should have similar access to this material.  The Crown opposed the defence's application.  They conceded that it is the duty of a Scottish prosecutor to supply to the defence any material available to the prosecution which advances the defence case or is relevant to a defence attack on the credibility of a prosecution witness. However, in the course of the Crown's lengthy submissions, it was stated by the Lord Advocate, Colin Boyd QC, that the deletions from the versions of the cables supplied to the defence related only to matters which were (a) irrelevant both to the facts in issue in the Lockerbie trial and to the credibility of the witness Majid Giaka or (b) related to sensitive matters of United States national security.  Indeed, it was for the purpose of ensuring that the Crown were in a position to fulfil their disclosure obligations that members of the Crown team inspected the unredacted cables on 1 June.  To quote the Lord Advocate:

"First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid.  They also considered whether was anything which might bear upon the special defences which had been lodged and intimated in this case.

"On all of these matters, the learned at Advocate Depute reached the conclusion 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... 

"There is nothing within these documents which relate to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters."

The Court was unimpressed by the arguments of the Lord Advocate and instructed him to use his best endeavours to secure the release by the CIA to the defence of the unredacted or uncensored cables. 

These cables were in due course made available to the defence, and on Tuesday 29 August various excerpts from them were read out in open court by defence counsel in an attempt to convince the judges that further CIA cables relating to Giaka should be made available to the defence, if necessary by means of a request by the Scottish Court at Camp Zeist to the appropriate Federal Court in the United States of America for an order compelling the CIA to disgorge the relevant material.  The Court, wishing to avoid the delays which would necessarily be caused by any recourse to the American courts, has instructed the Lord Advocate again to use his best endeavours to secure the release by the CIA of these additional cables.  Only if he is unsuccessful will the Scottish Court reluctantly consider the option of a formal request through the American courts. 

The previously blacked-out passages read out to the Court from the cables now in the hands of the defence indicated that, as at 1 September 1989 (more than eight months after the destruction of Pan Am 103), Giaka's CIA handlers were highly critical of him and of the lack of important information supplied by him.  He is described in the now-revealed portions of the cables as a man in the business of selling information for his own benefit; as someone who will never have the penetration of Libyan intelligence services that had been anticipated; as someone who had never been a true member of Libyan intelligence; and as someone whose CIA salary of $1000 per month should be cut off if he supplied no significant information.  It seems to be the natural inference from this that, by 1 September 1989, Giaka had still not informed his CIA masters that his Libyan colleagues in Malta had been responsible for the Lockerbie bombing: if he had done so, it is difficult to see how these criticisms of his value and of the worth of the information supplied by him could conceivably been made. 

But apart altogether from that, if the excerpts read out in court on Tuesday 29 August and summarised in the preceding paragraph accurately reflect passages from the cables which had been blacked out from the versions originally supplied to the defence, it is somewhat difficult to appreciate how it could possibly have been accurate or justifiable for the Crown to state to the Court on Tuesday 22 August that the redacted or censored portions within the documents contained nothing "which could in any way impinge on the credibility of Mr Majid."

Lockerbie investigators 'were led by the nose to Libyan culprits'

[What follows is excerpted from an item headed Fred Burton and The Lockerbie Case posted today on Dr Ludwig de Braeckeleer's Intel Today website:]

In his best-seller book Ghost[: Confessions of a Counterterrorism Agent (2008)], Mr Fred Burton — Stratfor Vice President of Intelligence — makes a truly extraordinary statement regarding the Lockerbie Case. If true, Burton’s allegation totally destroys the credibility of the ‘official story’ as narrated by FBI Richard Marquise, who led the US side of the Lockerbie investigation. But, and this is amazing, it also gives the boot to the ‘alternative theory’ promoted by many, including former CIA officer Robert Baer.

During the Lockerbie investigation, detectives from Britain, the United States and Germany examined computer records at Frankfurt airport.

They concluded that an unaccompanied Samsonite suitcase — thought to have contained the bomb — arrived on 21 December on Air Malta Flight KM 180 before being transferred on to Flight 103.

This evidence led Britain and the US to charge two Libyan Arab Airlines employees who had worked in Malta  — Lamen Khalifa Fhimah and Abdel Basset Ali Al-Megrahi — with putting the suitcase on Flight KM 180.

In his best-seller book Ghost, Mr Burton — a former deputy chief of the DSS counterterrorism division — claims that the CIA told him — a few days after the bombing of Pan Am 103 — that the bomb (located in a Samsonite suitcase) had come from Malta Airport. REPEAT: “A few days after the bombing of Pan Am 103.”

The key Frankfurt document — printed by an airport employee named Bogomira Erac — was given to the German BKA in February 1989. This document was not shared with the Lockerbie investigators until the end of the summer 1989. (Marquise – SCOTBOM page 50).

So, if Mr Burton tells the truth about his CIA contact, we have a serious problem.

How on earth could the Agency have known in December 1988 about the Malta-Frankfurt route when the ‘evidence’ about it only appeared eight months later?

Burton’s extraordinary allegation would imply that the Lockerbie investigators were led by the nose to the ‘Libyan culprits’.

But this story turns into a paradox. According to former CIA Robert Baer, the Agency never believed that Libya was behind the Lockerbie bombing!

“Regarding the CIA people in Malta who knew about Giaka [the Lockerbie trial ‘star’ witness], I asked them what the fuck was going on.

And they said: ‘We took one for the team, by making up this stuff about Libya.’

That was their exact words, ‘we took one for the team’.

Meaning they knew Giaka was a fraud, a swindler”.

As I have explained in the past, I do believe that Libya was framed for the Lockerbie bombing. But the decision to frame Libya did not occur before the summer of 1989. (...)

As a matter of fact, the CIA stopped paying Giaka because he had no useful information to pass.

The SCCRC has recently accepted to review the Lockerbie case. If Mr Burton’s extraordinary allegation can be proven, then obviously, Megrahi was framed as many experts suspect. Of course, the study of the key piece of evidence (PT35b) has already demonstrated that much.

Unless you are willing to accept the concept of ‘alternative truth’, there are simply too many ‘true stories’ about Lockerbie.

As long as the ‘truth’ will be defined by the lies upon which Western Intelligence Agencies decided to agree, I will keep on writing ‘a complete fictional account’ of the Lockerbie case.

At least, my ‘fiction’ respects the laws of nature (physics, chemistry,  metallurgy …), as well as logic and good old common sense. The ‘Lockerbie legal truth’ narrative is nonsense, utter nonsense.