The four elephants in the room which suggest the Lord Advocate is wrong

[This is the headline over an article by John Ashton published in today’s edition of the Sunday Herald. It reads as follows:]

The Crown Office has used the 26th anniversary of the Lockerbie bombing to proclaim the safety of the conviction of Abdelbaset al Megrahi, the only man so far convicted of the bombing.

The department briefed yesterday that a review of the case had "confirmed beyond doubt" the Libyan's guilt, while today its head, Lord Advocate Frank Mulholland QC, has personally reaffirmed that guilt.

Mulholland has been unusually vigorous in denouncing Megrahi's supporters, who include relatives of the Lockerbie dead, branding them "conspiracy theorists" two years ago. It is hard to imagine his opposite number in England and Wales, the director of public prosecutions, taking to the media to defend a conviction and take on critics. But while this strident tone has raised eyebrows, Mulholland's statements are more notable for ignoring four large elephants in the middle of his legal chambers.

The first is the ongoing review of the case by the Scottish Criminal Cases Review Commission (SCCRC), the statutory body that has the power to refer convictions to the appeal court. As Mulholland well knows, a previous review by the commission referred the case on no fewer than six grounds. The terminally ill Megrahi abandoned the resulting appeal to improve his chances of being granted compassionate release, but was confident that his name would one day be cleared. Remarkably, one of the six grounds was that the three Scottish law lords who convicted him had made a fundamental error of judgment when they found that the clothes incriminating Megrahi had been bought on December 7. In doing so, the commission, in the eyes of some, came as close as it legally could to saying that the guilty verdict was itself wrong.

More seriously for the Crown Office, four of the other grounds concerned its failure to disclose important evidence to Megrahi's defence team. This included evidence that the Crown's star witness, Maltese shopkeeper Tony Gauci, had expressed an interest in receiving a substantial reward and was under the strong influence of his brother Paul, who regularly nagged the police about being rewarded. The SCCRC discovered Gauci was later secretly paid $2 million by the US Department of Justice, and his brother Paul $1m.

When, in 2012, this ­newspaper published a leaked copy of the SCCRC's 800-page review, the Crown Office went into panic mode, anonymously briefing a Scottish tabloid that Megrahi's case had "more holes than a piece of Swiss cheese" then issuing a press statement that significantly downplayed the commission's findings.

The second elephant is the two-year-old police investigation, led by Police Scotland's Deputy Chief Constable Iain Livingstone, into criminal allegations made against some of those originally involved in the inquiry by the committee of the Justice for Megrahi group.

When the allegations were first made to the then Justice Secretary Kenny MacAskill, the Crown Office immediately denounced them as groundless, despite not having seen the detailed dossier of evidence assembled by the committee. Many were shocked by the intervention, believing it might compromise the police inquiry and that it raised serious questions about Mulholland's independence as the chief public prosecutor. Unfortunately for the Crown Office, the police clearly do not share its contempt for the allegations. If the investigation concludes there was no criminal misconduct, the Crown Office still has to explain why it failed to disclose so much important evidence. In the view of its critics, notably Dr Jim Swire, who lost his daughter in the bombing, the matter must be addressed in a public inquiry - something successive Scottish governments have been reluctant to grant.

The third elephant is forensic evidence concerning a small fragment of electronic circuit board, recovered from an item of clothing that was supposedly in the same suitcase as the bomb. According to the prosecution, it matched boards in timers supplied to Libya by a Swiss firm called Mebo, which shared offices with a Libyan company part-owned by Megrahi.

Evidence uncovered prior to Megrahi's abandoned appeal demonstrated that the fragment could not have originated from one of the Libyan timer boards. The discovery has fuelled claims the fragment was a plant, which has in turn encouraged the Crown Office to call its opponents conspiracy theorists. However, as Mulholland must be aware, the breaking of the link between the fragment and the Libyan timers leaves the prosecution case in shreds, regardless of whether it was planted.

The fourth elephant is the lack of evidence from Libya to implicate either Megrahi or the Gaddafi regime in the bombing. During the country's 2011 revolution, senior officials, keen to curry favour with the West, lined up to accuse the regime of sponsoring the attack.

The best known of them, the head of the National Transitional Council and former justice minister Mustafa Abdel Jalil, claimed to have proof that Gaddafi ordered the bombing.

All this must have been music to the Crown Office's ears, but, when pushed to reveal his proof of the regime's guilt, the best Jalil could offer was that it had funded ­Megrahi's legal case.

Sadly, Libya has become too dangerous for the Scottish police to conduct investigations there. Even if it were not, they would likely find the cupboard was bare. In the four years since the revolution, ­nothing has emerged publicly from the ruins of the old regime to affirm Megrahi's guilt, let alone Libya's.

No doubt Mulholland's public declarations will continue to ignore the four elephants in his legal chambers, but he must knows that their ever-fiercer stamping may one day bring Megrahi's conviction crashing around his ears.

John Ashton is the author of the authorised ­biography of Abdelbaset al Megrahi, Megrahi: You are my Jury, (Birlinn, 2012) and Scotland's Shame: Why Lockerbie Still Matters (Birlinn, 2014). From 2006-09, he worked as a researcher with Megrahi's legal team. 

[Here are links to some other reports in the media:

Megrahi was innocent of Lockerbie bombing, insists victim's father
Lockerbie victim's father criticises prosecutor's comments
Lockerbie bombing: Prosecutor's comments about al-Megrahi 'unfortunate'
Remember Lockerbie as crimes of intelligence services are exposed
Lockerbie: Lord Advocate to track down accomplices

And here is a moving reminiscence from someone engaged in the rescue operations on 21 December 1988:
Lockerbie -- 26 years on.]

Operation Sandwood Report: Public Statements by Lord Advocate and Crown Office

[In the item The Crown Office - cause for serious concern? posted earlier today on this blog, mention is made of statements by the Crown Office and the Lord Advocate that, in the view of Justice for Megrahi, disqualify them from playing any part in assessing Police Scotland’s forthcoming Operation Sandwood report into JfM’s allegations of criminal misconduct in the Lockerbie investigation, prosecution and trial. What follows is the text of a document released today by JfM on the Crown Office’s and Lord Advocate’s statements:]

Introduction

In relation to the forthcoming police Operation Sandwood report into Justice For Megrahi’s (JfM’s) 9 criminal allegations which is due to be submitted to the Crown Office early in 2016 we have consistently argued that this authority and the Lord Advocate have disqualified themselves from receiving, considering and making any prosecutorial or other decisions flowing from this report because of related public statements made by them.

Public Statements

In September 2012, following JfM’s letter to the then Secretary for Justice Kenny MacAskill laying out the allegations and seeking an independent investigation into them, and before they had been reported to the police, the Crown Office authorities publicly dismissed them as being without foundation in an article in The Scotsman:

‘But the Crown Office yesterday branded the allegations “defamatory and entirely unfounded”. A spokesman added that one of the allegations had been investigated by the Scottish Criminal Cases Review Commission (SCCRC) which found no basis for appeal, while it was also found there was “no basis” for claims that any police officers or officials fabricated evidence.

“It is a matter of the greatest concern that deliberately false and misleading allegations have been made in this way,” he added. The Lockerbie conviction has already been upheld by five appeal court judges, while Megrahi abandoned a second appeal.’ http://lockerbiecase.blogspot.co.uk/2012/09/deliberately-false-and-misleading.html

In December 2012 shortly after the allegations were officially delivered to Dumfries and Galloway Police, in widely reported statements, the Lord Advocate went public calling the JfM members who has made the allegations, “conspiracy theorists” and labelling the allegations, ‘defamatory and entirely unfounded ....... deliberately false and misleading.’

‘Scotland’s Lord Advocate has launched a powerful and stinging attack against “conspiracy theorists” who claim that the Lockerbie bomber was wrongly convicted.

In the most detailed rebuttal yet made to the case mounted by campaigners who argue that Abdul Baset Ali al-Megrahi was innocent and that Libya was not involved in the terrorist bomb plot that brought Pan Am 103 down over Lockerbie 24 years ago today, Frank Mulholland, QC, calls the allegations “without foundation” ‘.

He goes on to accuse those making them of uttering “defamatory” comments against High Court judges who are unable to respond. http://lockerbiecase.blogspot.co.uk/2012/12/pro-megrahi-backers-flayed-by-new-lord.html

It is against this background of unprecedented public vilification of JfM’s legitimate allegations and those who made them that the subsequent behaviour of Lord Advocate/ Crown Office must be judged.

Having set themselves firmly against JfM and its claims their subsequent behaviour can clearly be seen as a consistent pattern of behaviour proactively supporting this totally unjustified bias and prejudice.

In June 2014 the BBC reported that the Megrahi family had instructed a Scottish lawyer to apply to have his conviction reviewed by the SCCRC and published a Crown Office response to the application.

‘A Crown Office spokesman said they "do not fear scrutiny of the conviction by the SCCRC." The spokesman added: "The evidence upon which the conviction was based was rigorously scrutinised by the trial court and two appeal courts after which Megrahi stands convicted of the terrorist murder of 270 people. We will rigorously defend this conviction when called upon to do so. In the meantime, we will continue the investigation with US and Scottish police and law enforcement.” ‘ http://www.bbc.co.uk/news/uk-scotland-27698626

In December 2014, at the Lockerbie commemoration ceremony in America, the Lord Advocate once again re-emphasised Mr Megrahi’s guilt and stated the only remaining question was, ’who were his accomplices’? These comments were made in the full knowledge that Operation Sandwood was ongoing and that if any one of the criminal allegations was upheld this would call Mr Megrahi’s guilt into question and could point to Crown Office and police culpability.

The Daily Telegraph reported: ‘Frank Mulholland, the Lord Advocate, used the 26th anniversary of the bombing to reaffirm his belief in the guilt of the only man convicted of the attack, and said Scottish prosecutors would never give up the fight to find his accomplices.’ http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/11306609/Lockerbie-bombing-senior-law-officer-vows-to-track-down-Megrahi-accomplices.html

The BBC reported: ‘Mr Mulholland said: "During the 26-year long inquiry not one Crown Office investigator or prosecutor has raised a concern about the evidence in this case. "We remain committed to this investigation and our focus remains on the evidence, and not on speculation and supposition. "Our prosecutors and police officers, working with UK government and US colleagues, will continue to pursue this investigation, with the sole aim of bringing to justice those who acted along with al-Megrahi.” ‘

http://www.bbc.co.uk/news/uk-scotland-30560364

In October 2015 the BBC reported: ‘A Crown Office spokesman said: "The Lord Advocate and the US Attorney General have recently agreed that there is a proper basis in law in Scotland and the United States to entitle Scottish and US investigators to treat two Libyans as suspects in the continuing investigation into the bombing of flight Pan Am 103 over Lockerbie.’

http://www.bbc.co.uk/news/uk-scotland-34543983

Unfortunately these public statements by the Lord Advocate and Crown Office, highlighting and reinforcing Mr Megrahi’s guilt, fail to acknowledge, what they well knew, that there are two ongoing major investigations.

The first of them, to which the above quotations refer, is being conducted by a Crown Office/Police Scotland ‘Lockerbie Investigation Team’, in close liaison with the American FBI, and has been ongoing for a number of years. Its enquiries are based on the clear assumption that Megrahi did not act alone and his accomplices have still to be identified. The Lord Advocate has recently confirmed that as part of this investigation he is applying to interview two further Libyan suspects incarcerated in Libya.

The second investigation, mounted in 2012, followed JfM's nine allegations of criminality relating to the actions of Crown Office and police personnel and persons who were cited as Crown witnesses in the trial of the two Libyans. This investigation is now being carried out by a dedicated team of Police Scotland officers under the codename Operation Sandwood and a report is expected early next year.

As the Crown well knows the two investigations referred to above are potentially in direct conflict in that the first is predicated on the assumption that Mr. Megrahi is guilty. The Operation Sandwood enquiry however is into allegations that, if proved, point to his innocence and that there may have been malfeasance by some associated with the prosecution including Crown office personnel.

Conclusion

In publicly condemning the JfM allegations and the individuals who made them and by continuing to give such open public support to their own investigation the Lord Advocate and Crown Office have prejudiced and prejudged the outcome of Operation Sandwood.

In 2012 as soon as they were aware of our allegations, the resultant police investigation and the fact that if proved they could challenge the previous assumptions so actively being promoted by the Crown, these authorities should have taken immediate action to protect its integrity and made no further public comment which could be in any way related too that investigation.

As far as we can judge the Lord Advocate/Crown Office have taken absolutely no action to protect the ongoing Police Scotland major investigation and in fact have actively acted against it.

JfM believes that this consistent pattern of biased public statements, in addition to being completely inappropriate, has had the clear potential to influence and prejudice Operation Sandwood witnesses who have been required to provide statements against a background of this very public interference by Scotland’s senior prosecution authorities. We also fear that certain Crown, Police and expert witness, encouraged by the Crown statements, might seek to withhold from or alter legitimate evidence to Operation Sandwood.

Such blatant publicity also serves of course to set the whole of the Crown Office against any contradictory findings from Operation Sandwood thus making it entirely inappropriate for anyone associated with the Crown Office to receive, assess and decide on any action resulting from this report.

Since we made these allegations JfM has become increasingly concerned about the capability of the Lord Advocate/Crown Office to make objective and impartial decisions on any report emanating from the Operation Sandwood investigations. We believe that they have comprehensively disqualified themselves from such decisions and make it essential that a prosecutor completely independent of the Crown Office receives the report, assesses it and makes decisions arising from it without any Crown Office input.

The eight elements that destroy the Megrahi conviction

[What follows is an article headed Eight inconvenient truths about Lockerbie, which the media and authorities are ignoring posted by John Ashton today on his Megrahi: You are my Jury website:]

Today, the 26th anniversary of the Lockerbie bombing, the media is full of articles about the case. All report the claims of Scotland’s chief prosecutor, the Lord Advocate Frank Mulholland QC, that a review of the case has confirmed the guilt of Abdelbaset al-Megrahi, the only man so far convicted of the bombing. However, Mr Mulholland and – with the exception of a couple of Scottish newspapers – the media have barely touched upon key facts that suggest Mr Megrahi was not guilty.

Before I list these, a bit of background for those unfamiliar with the story. The prosecution case, which was accepted by the Scottish judges who convicted Mr Megrahi, was that on the morning of 21 December 1988, while travelling under a false name, he managed to smuggle a brown Samsonite suitcase containing a bomb onto an Air Malta flight from Malta to Frankfurt. An expert in airline security and alleged senior intelligence officer, Megrahi was said to have labelled the case for onward transfer to Pan Am flight 103A from Frankfurt to London Heathrow and Pan Am 103 from Heathrow to New York.

He supposedly bought clothes for the suitcase at a small Maltese shop called Mary’s House on an earlier visit to the island on 7 December. The shopkeeper, Tony Gauci, who was the prosecution’s star witness, told the court that Mr Megrahi resembled the man who had bought the clothes. The Malta link was confirmed by baggage records from Frankfurt airport, which appeared to show that a suitcase from the Air Malta flight had been forwarded to Pan Am 103.

Another key plank of the case was a fragment of electronic circuit board, found embedded within part of a blast damaged, Maltese shirt. A British forensic investigator told the court that the fragment matched boards in timers supplied to Libya by Swiss company Mebo, which shared its offices with a Libyan company called ABH, in which Megrahi was a shareholder.

Surely open and shut case? Er, no. Here are just a few of the reasons why.

1. The guilty verdict was “incomprehensible”

Not my description, but that of Professor Hans Köchler, a UN trial observer. He came to this conclusion because, according to the prosecution, Mr Megrahi coud only have carried out the bombing with the help of another Libyan, Lamin Fhimah, who stood trial with him. However, the judges acquitted Fhimah, which begged the question – as yet unanswered – how could Mr Megrahi acted alone?

2. The clothes buyer was clearly not Megrahi
In his statements to the police, the shopkeeper, Tony Gauci, consistently described the clothes buyer as around 50 years old, six feet tall, dark skinned and with a full head of hair. Mr Megrahi was around 5ft 8 inches tall, light-skinned, had thinning hair and, at the time of the incident, was just 36.

3. It’s official – the court judgment was unreasonable
In 2007, following a four-year review of the case, the Scottish Criminal Cases Review Commission (the official body responsible for examining alleged miscarriages of justice) referred Mr Megrahi’s conviction to the appeal court on no fewer than six grounds. He abandoned the appeal in 2009 when terminally ill with cancer in the belief that it would help smooth the way for his release from prison on compassionate grounds.

Crucially, one of the SCCRC’s six grounds was that there was no “reasonable foundation” for the crucial finding that he bought the clothes on 7 December 1988, which was his only window of opportunity. Why did the commission reach this conclusion? Because Mr Gauci was clear that, as he was leaving the shop, the clothes purchaser bought an umbrella because it had started to rain. Yet meteorological evidence heard by the court demonstrated that there was no rain on 7 December. If Mr Megrahi didn’t buy the clothes on 7 December, the prosecution case collapses, so the SCCRC had come as close as it legally could to saying that the guilty verdict itself was unreasonable.

4. The prosecution withheld a stack of evidence that was helpful to Megrahi
During their review, the SCCRC found that the prosecution had withheld important documents that cast doubt on their own case. Four out of the commission’s six appeal referral grounds concerned such non-disclosure.

Among the documents were secret police memos noting that Tony Gauci had expressed an interest in receiving a substantial reward, and that he was under the strong influence of his brother Paul, who regularly nagged the police about being rewarded. The SCCRC discovered that Tony was later secretly paid $2 million by the US Department of Justice and Paul $1 million. Among the documents uncovered by the commission was a begging letter from the police’s senior investigating officer to the DoJ, in which in which he acknowledged that the Crown Office was prevented by its own rules from seeking a reward for the brothers, but saw no problem in the police doing so.

5. The circuit board fragment was not from one of the timers supplied to Libya
Evidence uncovered in 2009 demonstrated that the circuit board fragment could not have originated from one of the Libyan timer boards. The evidence concerned the metallic coating on the fragment’s copper circuitry. Back in 1990, two independent scientists consulted by the police established that the coating was pure tin, but when, two years later, they examined a board from the same batch that was used to make the timers supplied to Libya, they discovered that it was coated with a tin-lead alloy. As neither scientist was an electronics expert, they were unaware of the potential significance of the difference. However, in 2009 Mr Megrahi’s lawyers spoke to the prosecution witness who had made the boards used in the Libyan timers, who was certain that all of them were coated with tin-lead alloy and therefore equally certain that he could not have made the board from which the fragment originated. The lawyers also discovered notes by the prosecution forensic expert who had claimed in court that the fragment matched the boards in the Libyan timers. These demonstrated that he too was aware of the metallurgical disparity, which, as an electronics expert, he should have recognised the significance of.

6. The luggage evidence points to Heathrow rather than Malta
It was not disputed at Mr Megrahi’s trial that the Lockerbie bomb was packed within a brown Samsonite suitcase. Of all the witnesses who were involved in the loading of the three flights on which, according to the prosecution, the bomb was carried were interviewed by the police. Only one of them could recall seeing such a case – a Heathrow baggage handler called John Bedford. Significantly, it was positioned within the luggage container within which the explosion later occurred, very close to the centre of the blast. Crucially, Mr Bedford went off duty BEFORE Pan Am flight 103A arrived from Frankfurt, which means that the suitcase he saw could not have originated on the Air Malta flight

Researcher Dr Morag Kerr, who has exhaustively studied the luggage evidence, has made an extremely compelling case that the Bedford suitcase contained the bomb. Furthermore, records from the Maltese airport suggest that no rogue baggage made it on to the flight to Frankfurt. (For further details see her book Adequately Explained by Stupidity?)

7. There is no reliable evidence that Megrahi was a senior intelligence agent
The claim that Mr Megrahi was a senior intelligent agent originated from a junior colleague in the state-owned Libyan Arab Airlines. At Mr Megrahi’s trial, this witness, Magid Giaka, was revealed to be a CIA informant. Not only that, but the CIA considered him so unreliable that it was on the verge of sacking him before he became useful in the Lockerbie case. Declassified CIA cables examined by the court showed him to be a money-grabbing fantasist. As well as alleging that Mr Megrahi was an intelligence agent, he claimed that colonel Gaddafi was a freemason. The judges rejected most of his evidence, yet chose to believe his unsupported claim about Mr Megrahi.

Mr Megrahi does not deny that travelling on a false passport, which he says was issued to him because he was involved a US sanctions-busting efforts to source spare parts for the airline. Crucially, he kept the passport for eleven years after the bombing and was happy for it to be passed to the prosecution at trial – hardly the actions of a guilty man.

8. No evidence has emerged from Libya since the fall of Gaddafi
A few days after the start of the Libyan revolution, in February 2011, Colonel Gaddafi’s ex-justice minister, Mustafa Abdel Jalil, who was soon to become head of Libya’s National Transitional Council, told the Swedish newspaper Expressen that he had proof that Gaddafi had ordered the bombing. A few days later, he told the Sunday Times that Mr Megrahi had blackmailed Gaddafi into securing his release from prison by threatening to expose Gaddafi’s role in the bombing, and had ‘vowed to exact revenge’ unless Gaddafi complied. However, when, a few weeks later, he was pushed to reveal his proof, the best he could offer was that the Gaddafi regime had funded Megrahi’s legal case. He later claimed that Expressen had misquoted him. The Scottish police and prosecutors hoped that the regime change would yield more evidence about Mr Megrahi’s and Gaddafi’s role in the bombing, but, nearly four years on, no such evidence has surfaced publicly. The only significant document to emerge was a letter from Megrahi to his relative Abdullah Sennousi, which was reported by the Wall Street Journal. In it he stated: “I am an innocent man”. He wasn’t lying.

Megrahi: the secret evidence

[This is the headline over an article (behind the paywall) in today’s edition of The Sunday Times.  It reads in part:]

Abdelbaset Ali Mohmed al-Megrahi, who is dying of prostate cancer, will claim in a new book that crucial documents were withheld from his defence team to ensure he remained the chief suspect for the 1988 atrocity which killed 270 people.

In Megrahi — You Are My Jury: The Lockerbie Evidence, published tomorrow, the Libyan will disclose details of witness statements that were not heard at his trial in 1999.

Megrahi, who was allowed to return to Libya in 2009 after he was diagnosed with terminal prostate cancer, hopes his book will provide compelling evidence that he is not guilty of Britain’s worst terrorist attack.

It argues that, far from being an unrepentant terrorist, the Libyan was the “innocent victim of dirty politics, a flawed investigation and judicial folly”.

Much of it draws on the findings of the Scottish Criminal Cases Review Commission (SCCRC), which recommended that his case be returned to the Appeal Court in 2007.

Their report has not been released publicly but was made available to the Libyan’s defence team. Megrahi is expected to reveal that statements made by Tony Gauci, the prosecution’s key witness, were never disclosed to his lawyers.

Gauci owned a shop in Malta where Megrahi allegedly purchased clothes that were wrapped around the Lockerbie bomb. Gauci’s testimony about the date when the clothing was purchased — December 7, 1988 — was crucial as that was the only day that Megrahi was known to be on the island.

Among the missing statements discovered by the SCCRC was one in which Gauci claimed his brother Paul was in the shop when the clothes were bought and helped the buyer carry the parcels to his car. It is claimed that, had Megrahi’s defence been aware of this, Paul Gauci would have been questioned and could have confirmed that Megrahi was not the buyer.

In another statement to Scottish police, Gauci said he “clearly” remembered an argument with his girlfriend on the day the clothes were purchased. Megrahi claims a failure to share this information denied his defence team a chance to interview the woman and corroborate the date.

The book also suggests false intelligence was passed by the Scottish authorities to German counterparts who were initially sceptical about Libya’s role in the atrocity.

A source close to the project said: “It’s a vast book and a lot of it is in forensic detail. If the case in the book is accepted, then the questions it raises about Scottish justice are very deep and very serious.”

The Crown Office, which maintains that Megrahi did not act alone in carrying out the terrorist attack, is preparing to send investigators to Libya in the hope of gathering fresh evidence to support his conviction and identify his accomplices.

Frank Mulholland QC, the lord advocate, met British relatives in London last week and revealed that the Crown Office had received “favourable” responses from Libya to a request for access to files held in Tripoli.

Also present at the meeting in Whitehall was Patrick Shearer, the chief constable of Dumfries and Galloway police, and two agents from the FBI.

Last night, Pamela Dix, who lost her brother Peter in the Lockerbie bombing, said: “The tragedy is still very distressing. I would far rather that new evidence was heard in a courtroom. The problem is none of it can be legally refuted and it will be his side of the story.”

John Ashton, a British journalist who wrote Megrahi’s book, said: “Abdelbaset and I are acutely aware of the anguish that the book might cause the victims’ relatives who believe him to be guilty. We simply wish them and the wider public to know all the important evidence that was available to us, most of which has been concealed from the relatives and was not aired at his trial.”

Jim Swire, whose daughter Flora died in the Lockerbie bombing and believes Megrahi was wrongfully convicted, said: “I very much hope the book will have influence on Scottish public opinion and persuade ministers to hold an independent inquiry into Megrahi’s guilty verdict.”

The Crown Office said: “The only appropriate forum for the determination of guilt or innocence is the court.”


[A brief article in the Sunday Mail headed “Lockerbie bomber Megrahi 'forgives' witness who secured his conviction” can be read here.]

The crumbling Lockerbie case

[This is the headline over an article published today on the Consortium News website. It reads as follows:]

A quarter century ago, the Pan Am 103 bombing over Lockerbie, Scotland, killed 270 people and later was pinned on a Libyan agent. In 2011, Lockerbie was used to justify a US-backed war to oust Libya’s Muammar Gaddafi, but the evidence now suggests the case was a miscarriage of justice, John Ashton writes.

Dec 21, 2013, marked the 25th anniversary of what, until 9/11, was the worst terrorist attack on US civilians. A total of 270 people died when Pan Am flight 103 was blown out of the sky over the small Scottish town of Lockerbie; 189 of the dead were Americans.

Officially the crime was partially solved on Jan 31, 2001, when Libyan Abdelbaset al-Megrahi was convicted of the murders by a panel of three senior Scottish judges, sitting at a specially convened Scottish court at Kamp Zeist in The Netherlands. His co-defendant, Lamin Fhimah, was acquitted.

As Megrahi was allegedly a puppet of the Gaddafi regime the Scottish and US prosecutors have vowed to pursue those who were pulling his strings. The ex-FBI Director Robert Mueller said on the 25th anniversary that he expected further charges to be brought. Yet, to most of those who have scrutinized the Megrahi conviction – and Consortiumnews.com is one of the few U.S. media outlets to have done so (see here, here and here) – it is, at best, odd and, at worst, a sham.

One of the UN trial observers, Professor Hans Koechler, noted: “there is not one single piece of material evidence linking the two accused to the crime. In such a context, the guilty verdict in regard to the first accused appears to be arbitrary, even irrational,” while eminent Scottish lawyer Ian Hamilton QC has said, “I don’t think there’s a lawyer in Scotland who now believes Mr Megrahi was justly convicted.”

More importantly, in 2007, the Scottish Criminal Cases Review Commission, a statutory body that reviews alleged miscarriages of justice, referred the conviction back to the appeals court on no fewer than six grounds, one of which was that the trial court’s judgment was unreasonable. Shockingly, four of the other grounds concerned the non-disclosure of important evidence by the prosecution. Sadly, Megrahi succumbed to pressure to abandon the appeal, shortly before his release from prison on compassionate grounds in August 2009.

More Promising Leads

Another reason to doubt the official line that the bombing was a solely Libyan operation is that there is ample circumstantial evidence that it was commissioned by Iran (possibly in retaliation for the U.S. military shoot-down of an Iranian airliner on July 3, 1988, killing 290 people) and carried out by a radical Palestinian group, the Popular Front for the Liberation of Palestine – General Command (PFLP-GC).

Two months before the Pan Am 103 attack, on Oct 26, 1988, the group was caught red-handed by the German federal police with a barometric bomb designed to explode at altitude. The police also uncovered a huge terrorist arsenal, which the group had amassed in an apartment in Frankfurt, the city from which PA103’s feeder flight, PA103A, would originate. Like the Lockerbie bomb, the barometric bomb had been built into a Toshiba radio cassette player. Although it was a single-speaker model – the Lockerbie device had twin speakers – by a rather sick twist, both models were from Toshiba’s BomBeat range.

The man who made the German bomb, Marwan Khreesat, turned out to be a mole for both the Jordanian and German intelligence services. He told the police that he had made five bombs, only four of which were recovered. He and another PFLP-GC member, Mobdi Goben, who led the group’s Yugoslavian cell, confirmed that the organization had other bomb makers and that the Oct 26 raids did not snare all of its German operatives.

Significantly, both men independently named a member with the nomme de guerre Abu Elias as the operation’s linchpin. His true identity remains unknown. Declassified U.S. intelligence documents stated as fact that Iran and the PFLP-GC were behind the bombing. Another, written months after the investigation had shifted decisively to Libya, said that Iranian interior minister had paid $10 million for the hit.

The increasingly rickety “Libya-did-it” line appeared to receive a much-needed boost 2½ years ago with the fall of the Gaddafi regime. At the start of the revolution, in early 2011, the opposition leader Mustafa Abdel Jalil, who had been Gaddafi’s justice minister, told the Swedish newspaper Expressen that he had proof that his old boss was responsible for Lockerbie. Other senior government defectors implicated the old regime in the bombing.

So, when Scotland’s prosecution service, the Crown Office, announced that it would be seeking the cooperation of the new Libyan government to gather evidence against Megrahi’s alleged co-conspirators, Lockerbie watchers were braced for some rapid developments.

Getting Nowhere

Unfortunately for the Crown Office and police, in the intervening 2½ years, they appear to have got precisely nowhere. Last December, Libya’s new UK ambassador, Mahmud Nacua, said that his government would be happy to open all of its Lockerbie files to the police, but added that this would only happen when the government had fully established security and stability – a process he believed would take at least a year. A year on, there’s no hint that the files are about to be opened.

It was not until February 2013 that the police, prosecutors and the FBI got to visit Tripoli to speak to the new government. Embarrassingly, no sooner had they left than the new deputy justice minister, Hameda al-Magery, told the Daily Telegraph that the case was closed.

The Crown Office swiftly issued a press release, which described the discussions with the Libyans as “positive” and added “it is hoped there will be further progress as a result.” That hope seems increasingly forlorn. Only last month did the Libyan government appoint prosecutors to work on the case with Scottish and US investigators.

The development was hailed as a “significant step” by Scotland’s chief prosecutor, the Lord Advocate Frank Mulholland. That is one interpretation, but, when viewed as a whole, the events since Gaddafi’s fall suggest that the Libyans might be trying to put off the day when they have to admit to the Scots and FBI that the cupboard is bare: they have no evidence of the Gaddafi regime’s involvement.

Since Gaddafi’s fall, the only document about the case to surface publicly from his regime’s files is a letter from Megrahi to his relative, Gaddafi’s security chief Abdullah Sennousi, in which, according to the Wall Street Journal, he protested his innocence and blamed his plight on “the immoral British and American investigators” who “knew there was foul play and irregularities in the investigation.”

What, then, of Mustafa Abdel Jalil’s proof? When asked about it on BBC Newsnight, the best he could offer was the fact that Gaddafi’s government had paid Megrahi’s legal bills. A year later Jalil insisted in another newspaper interview that Expressen had misquoted him, adding: “All I said then is what I say right now, which is that the regime was involved in this case, evident by insisting [Megrahi] returns [to Libya] and that they spent a lot of money on him while he was in jail.”

It was preposterous to claim that the old regime’s funding of Megrahi’s legal defense, and its efforts to secure his return to Libya, was evidence of its guilt.

Exonerating Evidence

While the police investigation in Libya has stalled, the police and Crown Office are studiously ignoring new evidence that destroys the case against Megrahi and Libya. It concerns the most important physical evidence of the entire case, a tiny fragment of circuit board, known by its police reference number of PT/35b, which was allegedly part of the bomb’s timer.

According to the prosecution case, the fragment matched boards in timers designed and built for the Libyan intelligence service by a Swiss firm called Mebo. During preparations for Megrahi’s aborted second appeal, his legal team (with whom I worked as a researcher) discovered that the fragment could not have originated from one of the Libyan timers’ boards, because it bore a crucial metallurgical difference.

When combined with a wealth of existing anomalies concerning the fragment’s provenance, the discovery strongly suggested that it was a fake that was planted in order to implicate Libya. According to the published memoir of the head of the FBI’s Lockerbie investigation, Richard Marquise, his opposite number in the Swiss police also suspected the fragment was a plant.  The thought even occurred to Marquise and the Scottish police’s senior investigating officer, Stuart Henderson.

Why, then, have the Scottish police and Crown Office failed to approach the witnesses who can attest to the mismatch between the fragment and the Libyan timers – witnesses who include the man who made the boards used in the those timers, and two independent scientists? The obvious answer is that they want to avoid evidence that shows the official case to be built on sand.

John Ashton, who worked as a defense investigator on the Pan Am 103 case, is the author of Scotland’s Shame: Why Lockerbie Still Matters.

Anniversary of Sunday Herald publication of SCCRC Megrahi report

[It was on this date in 2012 that the Sunday Herald published the Scottish Criminal Cases Review Commission’s Statement of Reasons in the Megrahi case. The BBC News website carried the following report:]

Full details of the Lockerbie bomber's grounds for appeal have been published for the first time.

The Sunday Herald said it had decided to publish online the 821-page report from the Scottish Criminal Cases Review Commission (SCCRC) in the case of Abdelbaset al-Megrahi.

It follows assurances by the lord advocate that SCCRC members would not be prosecuted for publishing details.

The newspaper said it chose to publish on the grounds of public interest.

The move was welcomed by First Minister Alex Salmond, who had earlier called for the grounds for appeal to be published.

Last week Lord Advocate Frank Mulholland said that while it was an offence for the commission to disclose information obtained in its investigations, he considered "it would not be in the public interest to prosecute, given the selective publication" in the media.

The SCCRC took four years to consider the Lockerbie bomber's case.

It produced an 821-page document which referred Megrahi's conviction for the 1988 bombing back to the appeal court for the second time.

The document - called a statement of reasons - has never been published in full before, even though Megrahi abandoned his appeal shortly before he was allowed to return home to Libya in August 2009 because he was suffering from terminal prostate cancer. He is still alive.

In publishing the document, The Sunday Herald said: "We choose to publish it because we have the permission of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the bombing, and because we believe it is in the public interest to disseminate the whole document.

"The Sunday Herald has chosen to publish the full report online today to allow the public to see for themselves the analysis of the evidence which could have resulted in the acquittal of Megrahi.

"Under Section 32 of the Data Protection Act, journalists can publish in the public interest. We have made very few redactions to protect the names of confidential sources and private information."

SCCRC chief executive Gerard Sinclair confirmed that the Herald document appeared to be a copy of its statement of reasons.

He said: "The commission has always been willing to publish this document, subject to the appropriate protection of individuals' rights, and to that end has been working for some time with the relevant parties, including Crown Office and both the Scottish and UK governments, to allow for publication of the outcome of our inquiries into Mr Megrahi's conviction."

"No further comment will be made by the commission at this time."

The Crown Office said it noted the publication by the Sunday Herald.

It said: "The commission was working to facilitate the publication with appropriate protection for all of the persons named in it taking account of their human rights (articles 2 and 8) and issues of confidentiality.

"The unauthorised publication by the Sunday Herald today does not deal with any of these issues which rightly constrain all public authorities by law."

The Crown Office said it had "become very concerned at the drip feeding of selective leaks and partial reporting from parts of the statement of reasons over the last few weeks in an attempt to sensationalise aspects of the contents out of context".

It continued: "Persons referred to in the statement of reasons have been asked to respond to these reports without having access to the statement of reasons and this is to be deplored.

"Further allegations of serious misconduct have been made in the media against a number of individuals for which the commission found no evidence. This is also to be deplored.

"In fact the commission found no basis for concluding that evidence in the case was fabricated by the police, the Crown, forensic scientists or any other representatives of official bodies or government agencies."

The Crown Office also said it was "not appropriate or helpful to seek to try a case in the media".

It added: "The only place to determine guilt or innocence is in a court of law. The trial court accepted that this was an act of State sponsored terrorism and that Megrahi did not act alone.

"Investigations will continue to bring the others involved in the murder of 270 persons to justice.

"As a result the Crown will be making no further comment on the evidence in the case and on the statement of reasons."

Mr Salmond said: "I welcome the publication in full of this report, which is something that the Scottish government has been doing everything in our powers to facilitate.

"I especially welcome the fact that it offers a full account of the SCCRC's deliberations rather than the partial accounts which have appeared in the media in recent weeks."

He added: "This report provides valuable information, from an independent body acting without fear or favour, and while we can not expect it to resolve all the issues in the Lockerbie case, it does however lay the basis for narrowing the areas of dispute and in many ways is far more comprehensive than any inquiry could ever hope to be.

"The Lockerbie case of course remains an open criminal investigation, and while the only place to determine guilt or innocence is in a court of law, the SCCRC is a valuable body which is itself part of the Scottish criminal justice system."

[RB: The Sunday Herald’s own article announcing its publication of the report can be read here; and the report itself can be read here.]