MSP pushes for Sandwood conclusion

[This is the headline over a report published yesterday in The Southern Reporter. It reads as follows:]

Midlothian South, Tweeddale and Lauderdale MSP Christine Grahame this week called for Holyrood’s justice committee to press for progress on Police Scotland’s Operation Sandwood Enquiry, which is investigating possible police criminality in the enquiry into the bombing of Pan Am Flight 103 over Lockerbie in 1988. 

The atrocity claimed 270 lives and resulted in the conviction in 2001 of Abdelbasset Al-Megrahi, but this conviction has been a source of deep controversy. 

Operation Sandwood was set up in February 2014 with the Justice Committee told in March 2016 by Deputy Chief Constable Iain Livingstone it was in its “final stage”, however no further indication has been given that it is near a conclusion. 

The ongoing nature of the enquiry poses an obstacle to the family of the late Al-Megrahi as the application to the Scottish Criminal Cases Review Commission (SCCRC) likely cannot progress until it is concluded. 

Ms Grahame said: “I have a longstanding interest in this matter and I do believe the case as to whether Megrahi was rightly convicted or not needs to be concluded. 

“The process for this is for the SCCRC to consider the application by Al-Megrahi’s family to have his conviction appealed and for that to happen Operation Sandwood must conclude and report to the Crown Office. 

“This cannot be allowed to go on indefinitely –nearly 30 years have now passed since this atrocity and we find ourselves in the position where there are victims’ families who may die without knowing the truth about Lockerbie, whatever it turns out to be.” 

The committee agreed to Ms Grahame’s request. 

We asked Police Scotland when the Sandwood report is likely to be concluded. Detective Superintendent Stuart Johnstone said: “The investigation has reached its concluding phase and the full report will follow with a submission process through the Deputy Chief Constable to the independent QC appointed by Police Scotland, prior to submission to the Crown.”

Sandwood: no prosecutions but material relevant to potential future appeal

[The Operation Sandwood inquiry is now complete and its findings have been communicated to the Lord Advocate. A letter today from Chief Constable Iain Livingstone to Justice for Megrahi contains the following sentences:]

I have written to the Lord Advocate to inform him Operation Sandwood is now complete and that there is no evidence of criminality and therefore no basis to submit a standard prosecution report.

The material collated during the inquiry and the findings and conclusions reached have relevance to both the ongoing live investigation and the potential appeal against conviction lodged on behalf of the late Mr Megrahi. The materials have therefore been handed to Crown Office officials.

[Justice for Megrahi has today issued a press release in the following terms:]

LOCKERBIE REPORT BRINGS HOPE THAT THE TRUTH ABOUT THE UK’S WORST EVER TERRORIST OUTRAGE WILL FINALLY BE TOLD.

In 2012 when JfM made nine criminal allegations in connection with the Lockerbie investigation and trial, related to possible malpractice by Crown Office personnel, police and other prosecution witnesses, our main aim was to shine a light into the darkness that surrounded the investigation and trial related to the UK’s worst ever terrorist outrage.

Some six years later this light has been shone and we welcome Chief Constable Livingstone’s announcement that, while there will be no criminal prosecutions following from the Police Scotland enquiry, the findings of that enquiry will be of importance to many of the issues being considered by the Scottish Criminal Cases Review Commission (SCCRC) as it carries out a review of Abdelbaset al-Megrahi's conviction to decide whether it would be appropriate to refer the matter to the Appeal Court.

We have always believed that it was via the Scottish Appeal Court that the truth would finally emerge and we have faith in the Scottish Justice System to ensure this is done.

The Operation Sandwood investigation has resulted in a seminal report which has examined many of the controversies which have arisen over the past thirty years. We believe that Police Scotland conducted their enquiry with thoroughness and integrity and we thank them for the work they have carried out.

We would also like to thank the Justice Committee of the Scottish Parliament for their oversight of the criminal investigation and trust that they will continue that oversight until an SCCRC decision is made and the outcome of any appeal is known.

JfM states: “As the 30th anniversary of this tragedy approaches we feel there is a very real possibility that the truth behind the UK’s worst ever terrorist outrage will finally be revealed. We have confidence that the Scottish criminal justice system will welcome this light that has now been shone into the darkness that surrounds Lockerbie and will ensure that the truth is finally revealed to those who lost their loved ones on the 21st December 1988.”

A welcome departure

[What follows is an item posted on this date in 2016 on Dr Jim Swire and Peter Biddulph’s Lockerbie Truth website:]

Scotland's Lord Advocate [Frank Mulholland] is to step down from his position as Scotland's leading law officer. Click here for more…

His decision comes just days after a media conference held in Edinburgh's Dynamic Earth conference centre on 16th March, chaired by representatives of Justice for Megrahi.

At that conference there were calls for the Lord Advocate to consider his position, following a special police investigation - Operation Sandwood - into allegations of criminality [by police and prosecutors] and a key forensic witness during the Lockerbie trial of Libyan Baset al-Megrahi.

It is understood that the Operation Sandwood report will be available for consideration in approximately two months time. [RB: It is now expected later this year. Justice for Megrahi's liaison group has regular meetings with the investigation team and is confident about the rigour of the complex investigation.]

Recently in an unusual move, the National Scottish Police Force has appointed an independent QC to advise it on the Sandwood inquiry because it felt unable to ask Crown Office lawyers to assess the evidence of alleged wrongdoing against certain Crown officers.  Click here for more on this story.

Al-Megrahi was convicted in 2000 for the Lockerbie bombing, in which 259 passengers and eleven townspeople were killed by a bomb placed on flight Pan Am 103.

[RB: Frank Mulholland QC was installed as a judge of the Court of Session and High Court of Justiciary on 15 December 2016. His disgraceful comments about Justice for Megrahi’s criminality allegations gravely compromised the Crown Office’s position in relation to Operation Sandwood.]

The case that never goes away

[What follows is the text of a talk given by Dr Morag Kerr on Saturday, 16 June 2018 at a rally at Inch Park, Edinburgh:]

This year is the 30th anniversary of the Lockerbie disaster, the case that never goes away.

I've heard people say, drop it, it's history.  But it's not much longer ago than Hillsborough, and that was only resolved to public satisfaction very recently.  And I personally have an aversion to a false narrative going down in history.  Other people feel the same way, including people personally impacted by the atrocity, and that's why we still have active campaigns.

Why is it that there's still so much concern about Lockerbie?Fundamentally, because the verdict in 2001 never made any sense.  As the court proceedings unfolded the prosecution case appeared to be falling apart.  The evidence against the accused was far far weaker than the public had been led to believe and credible alternative culprits and lines of inquiry had never been properly investigated.  The guilty verdict against Abdelbaset al-Megrahi came as a genuine shock to many informed observers, and their concerns have never been laid to rest.

Two separate but parallel campaigns have been going on for the last few years, and both are seeing significant developments unfolding.  First, there is the application by Megrahi's family for a posthumous appeal against his conviction.

This case has already had two appeals come to court.  The first appeal, the automatic one immediately after the conviction, was brought on the wrong grounds by Megrahi's inept advocate, and was dismissed essentially on a string of technicalities.  The second appeal was the result of a prolonged investigation by the Scottish Criminal Cases Review Commission and it came to court in 2009.  But by that time Megrahi had been diagnosed with terminal prostate cancer and was anxious to return home to his family before he died, and he formally abandoned that appeal immediately before he was granted compassionate release.

This introduced a legal controversy.  Megrahi himself and his legal team maintained that he had withdrawn the appeal to make it more likely that compassionate release would be granted.  Kenny MacAskill denied having made that a condition of granting compassionate release.  When Megrahi's family applied to the SCCRC for a third appeal, the point that had to be decided was, how many bites at the cherry is anybody allowed to have?  The appellant abandoned his appeal voluntarily, so why should another be allowed?

The SCCRC's decision on this was reported last month.  They accepted that Megrahi withdrew the appeal because he believed it would improve his chances of being allowed to go home, and that it wasn't in any way a capitulation or an admission of guilt.  They have therefore decided to carry out a full evaluation of the new application from his family.  I anticipate that this will result in a third appeal being allowed and going to court.

The second campaign is an initiative by the pressure group Justice for Megrahi, of which I'm secretary depute.  The JFM committee includes retired senior lawyers and a retired senior police officer as well as relatives of Lockerbie victims, so we have a lot of expertise to call on.  Back in 2012 when the prospects of getting a third appeal to court were looking remote, we had a look at other options to force the authorities to look again at the case.  The thing is, you can't just go to the police or the Crown Office and say, look, here's why I think you got this wrong, you must reconsider.  It doesn't work like that.  What you can do, is force the police to look at the case again by making formal allegations of criminality against other people, which they are then duty bound to investigate.

I'm not talking about allegations against alternative suspects, but against people involved in the original investigation and the trial at Camp Zeist.  We had very good reason to believe that significant shenanigans had taken place at both stages of the proceedings, and that we had sufficient evidence to compel the police to investigate this seriously.  Eventually we submitted nine separate allegations to the authorities, backed up with credible evidence in each case.  These included police misconduct, forensic fraud and/or criminal negligence, perjury, and attempts to pervert the course of justice.

Now of course talk is cheap and anyone can allege anything, but if there had been no substance to our allegations the police could have disposed of them quickly with very little trouble.  That's what they thought they were going to do, at first.  However it was eventually realised that there was serious substance to what we were saying, and in 2014 a dedicated Police Scotland investigation was set up, codenamed Operation Sandwood.  I think the fact that it has taken these detectives four years to finalise their report says a lot about how well-founded our position is, and how thorough the investigation has been.

It seems likely that the Operation Sandwood report will be submitted to the Crown Office before the SCCRC is ready to report, but I don't really know how much longer it will be for either of them.  Both reports will be confidential and will not automatically be made public, so we're going to have to do a fair bit of reading between the lines.

Although the two investigations are separate, they are essentially investigating the same thing -- the evidence in the Lockerbie case.   There's a huge amount of that, but systematic analysis boils it down to three critical points, only two of which specifically incriminate Megrahi.

The first of these is the identification evidence.  Clothes packed in the suitcase with the bomb were traced to their manufacturer, and from there to the shop where they were sold.  Amazingly the shopkeeper remembered selling more than one of these items to a customer, and he had some recollection of what that man looked like.  The prosecution alleged that it was Megrahi who had bought these clothes.

The first SCCRC report detailed six grounds on which the commission believed it was possible that a miscarriage of justice had occurred, and all of these related to the clothes purchase.  It seems to me inevitable that the new SCCRC investigation will have to allow a new appeal on these grounds if nothing else.  However, we hardly need to wait for the SCCRC on that one.  Kenny MacAskill has already, belatedly, conceded the point.  In his recent book and again in press articles, he agrees that Megrahi was not the man who bought the clothes.

In fact that's all it should take to overturn the conviction entirely.  If he didn't buy the clothes the case against him falls apart in logic.  However, Kenny doesn't see it that way, and pins his continued assertion that Megrahi was involved in the bombing on the second main point which appears to incriminate him, the fact that he was present at the airport when the bomb was smuggled on board the plane.  This also seems to be the fall-back position of the Crown Office.  Well, maybe someone else bought the clothes, but Megrahi was there when the crime took place and he was a Libyan security agent so go figure.

That aspect of the case is my own personal speciality.  Was Megrahi present at the scene of the crime?  There's no doubt he was at the airport in Malta that morning, catching a short-hop flight back to Tripoli after an overnight business trip to Malta.  The question is, was that actually the scene of the crime?  There was no evidence at all that security at Malta airport was breached that morning, no evidence that an illicit, unaccompanied suitcase was smuggled on to the flight to Frankfurt, and considerable evidence that no such thing actually happened.  Exactly how the prosecution managed to persuade the judges that it had happened is one of the enduring conundrums of the Lockerbie saga.

The Crown case depends absolutely on their preferred modus operandi, the story of the suitcase that was smuggled on to an aircraft in the morning on Malta, was transferred automatically through the baggage transfer system at Frankfurt without anyone realising that there was no passenger attached to it, and was then in due course transferred to the transatlantic airliner Maid of the Seas at Heathrow.  It was the transatlantic leg that blew up over Lockerbie.

However, as I said, there's no evidence at all of that suitcase being present at Malta airport, and the evidence from Frankfurt that was used to assert that it must have been there is tenuous beyond belief.  It's only when you look at the evidence from Heathrow itself that things get a lot clearer.  To cut a long story short, there is clear and incontrovertible evidence that the bomb suitcase was already in the baggage container at Heathrow a full hour before the connecting flight from Frankfurt landed.  This evidence was available to the investigation at an early stage, but it appears the investigating officers simply didn't want to know.  The amount of effort expended in ignoring that suitcase is quite remarkable.

But once that is accepted, Megrahi really is exonerated.  This smear of "well maybe he didn't buy the clothes but he was there when the bomb was smuggled on board the plane so obviously he was involved" simply doesn't stand up.  He was 1,500 miles away at the time -- the distance from London to Tripoli.

The Crown Office case simply collapses.  It's not a situation where the crime has been more or less solved but there just isn't enough admissible evidence to get a conviction to stick, the Lockerbie investigation was up a gum tree almost from the beginning. Despite clear and compelling evidence that Heathrow was the scene of the crime, the police chased a red herring down a blind alley to Malta, and refused to think again even when prolonged investigation there turned up no sign of the bomb.

This admission would be hugely embarrassing for the legal establishment.  Millions of pounds spent on an investigation that was investigating the wrong airports.  An entire country ruined by punitive sanctions imposed on the assumption that its nationals were guilty of the atrocity.  Millions more spent on that three-ring-circus of a trial.

So I think we can anticipate some pretty strenuous resistance to this finding.  I expect the SCCRC to be pressurised to confine their investigation to the original six grounds of appeal, which were all about the clothes purchase, and not to extend their remit to the route of the bomb suitcase or indeed to the third point of contention, the identity of the fragment of printed circuit board that was alleged to have been part of the bomb's timing mechanism.

I also expect the Crown Office to try to bury the Sandwood report into our allegations of criminality.  There's an unavoidable weakness there.  The stratagem that we had to use was to accuse individuals of criminal offences in the course of these matters being wrongly investigated and wrongly presented to the court.  However, even if Operation Sandwood agrees with us on all three main headings -- that Megrahi was not the man who bought the clothes, that the bomb was introduced at Heathrow not Malta, and that the fragment of circuit board was not what the prosecution said it was -- it's quite possible that no actual prosecutions will result.

The people involved are now quite elderly, in their seventies or older.  Some of them are dead.  John Orr, the first senior investigating officer assigned to the case, who was prominent in turning a blind eye to the Heathrow evidence, died about four months ago.  Even if Operation Sandwood concludes that there is credible evidence of criminal wrongdoing as opposed to blind incompetence, it's not impossible that a decision might be taken that prosecutions are not in the public interest.

So I'm somewhat prepared for the announcement that no prosecutions are to be brought as a result of the Operation Sandwood investigation.  That, in my opinion, will not be good enough.  The public paid for that investigation, and the public is entitled to know the broad outcome of its inquiry into the facts.  Does the Sandwood report accept that the witness Tony Gauci was groomed and pressurised into identifying Megrahi as the man who bought the clothes, even though he looked absolutely nothing like him?  Does it agree that the Lockerbie bomb started its journey in the late afternoon at Heathrow airport, not in the morning on Malta?  And does it agree that the scrap of printed circuit board, whatever it was, was never part of one of the timers in the batch that was sold to Libya?

We may have to wait for the third appeal coming to court to get to the bottom of all this, but these are the questions that the public, and in particular journalists, should be asking.

Now if anyone wants to hear a lot more detail about this, I will be giving a longer, illustrated talk on the evidence at the Yes Hub in a couple of weeks time, and there will be more opportunity for questions, and you won't have to stand in the rain to do it.  But if anyone has anything they want to ask now, fire away.

Lockerbie relatives again call for independent inquiry

[What follows is excerpted from a report published in today’s edition of
The Herald:]

Relatives of Lockerbie bombing victims have renewed a call for a full independent inquiry into the downing of Pan Am Flight 103 following the 29th anniversary of the atrocity which killed 270 people.

John Mosey and Jim Swire, who both lost daughters when the aeroplane was blown out of the sky on December 21, 1988, believe Abdelbaset al-Megrahi, who was convicted of the bombing in 2001, was innocent. Swire’s campaign group, Justice for Megrahi (JfM), lodged a legal appeal bid in July. (...)

On [4] July 2017, the Scottish Criminal Cases Review Commission confirmed it had received a third application to review the conviction.

Meanwhile, a three-year investigation by police into nine allegations of criminality by Lockerbie investigators, known as Operation Sandwood, is ongoing. It is expected to conclude in February.

Jim Swire, 81, whose 23-year-old daughter Flora was on the flight, said it’s “essential” there is also “a full public inquiry which has to go beyond confines of Scotland”.

Mosey, 77, who lost his 19-year-old daughter, Helga, when the plane came down, said: “Maybe, just maybe, one or both of the two current direct approaches via Police Scotland and the Scottish Criminal Cases Review Commission will bring us one step nearer to getting a full, independent inquiry and some honest answers to the big questions that trouble us."

“This would, at least, restore some of our confidence in our legal systems and in those who govern us and give us back a little of our national pride.”

Detective Superintendent Stuart Johnstone, of Police Scotland, said Operation Sandwood was at an advanced stage and that the final report would be closely scrutined by an independent QC before being submitted to the Crown Office.

A Scottish Government spokesperson said: “We will examine the findings of Police Scotland’s Operation Sandwood report before we consider any future steps.”

The Crown Office - cause for serious concern?

[This is the heading over a message circulated today by Justice for Megrahi’s secretary, Robert Forrester, to Scottish political, legal, media and academic groups and individuals. It reads as follows:]

I am writing as Secretary of ‘Justice for Megrahi,’ (JfM), a single purpose group which campaigns for the truth to be revealed about the Lockerbie Pan Am disaster in 1988.

As the 27th anniversary approaches on 21st December we are contacting as many individuals and organisations as we can who are engaged with and interested in the Scottish Justice system alerting them to a situation which we believe is unparalleled in our legal history and to enlist their support.

In 2012 JfM made 9 criminal allegations in connection with the Lockerbie investigation and trial which, if supported, not only throw serious doubt on Mr Megrahi’s conviction but also point to possible malpractice by Crown Office personnel, police and other prosecution witnesses involved in this investigation and trial.

In April 2013 the initial police enquiry was upgraded by Police Scotland when they launched a major criminal investigation codenamed ‘Operation Sandwood’ which will report on our allegations to the Crown Office early next year.

We believe that by their continuing actions the Lord Advocate and Crown Office have totally disqualified themselves from considering this report.

We cite two main reasons:

• Some of the allegations relate to Crown Office personnel and thus they cannot be judge and jury in their own cause.

• The Lord Advocate and Crown Office have already come to a view on these allegations in that they have publicly described the JfM complainers as ‘conspiracy theorists’, and dismissed the allegations as, ‘defamatory and entirely unfounded … deliberately false and misleading’ .

These views were first expressed before the police initiated their investigations and subsequently while they were in progress and were clearly intended to undermine the credibility of the allegations and those who made them.

We would also draw your attention to the repeated public statements by the Lord Advocate and Crown Office that their whole focus is on tracing Mr Megrahi’s accomplices in Libya and elsewhere.

Should the ongoing ‘Operation Sandwood’ investigations substantiate any of our allegations then these very authorities will be forced to consider conclusions that they have consistently publicly decried.

It is this very public bias and prejudice evinced by the Crown authorities that convinces us they cannot be allowed to be the final arbiters of the ‘Operation Sandwood’ report.

Our request for the police report to be considered by a prosecutor totally independent of the Crown has been dismissed by the Lord Advocate.

A plea to the Scottish Government to intervene and ensure an open and accountable consideration of the police report has also been peremptorily dismissed.

If you share our concerns, we would urge you to support our efforts to obtain an independent consideration of the police report by responding to this e-mail with your views. If you wish any further information, please contact me: Email: forrester.robert@gmail.com

The best source of information on Lockerbie and JfM’s ongoing campaign can be found on The Lockerbie Case blog run by Professor Bob Black, QC, Emeritus Professor of Scots Law, Edinburgh University, at: http://lockerbiecase.blogspot.co.uk.

Independent counsel to consider any Lockerbie criminality allegations

[What follows are written questions answered on 2 March 2017 in the Scottish Parliament:]

Question S5W-06844: Alex Neil, Airdrie and Shotts, Scottish National Party, Date Lodged: 02/02/2017

To ask the Scottish Government who will decide on what action should be taken arising from the findings of the Police Scotland report on Operation Sandwood.

Answered by James Wolffe QC (02/03/2017):

If there is any report submitted by Police Service of Scotland alleging criminality by named individuals, the Law Officers consider it important that such allegations in accordance with normal practice are dealt with fairly and robustly by independent counsel, supported as required by a senior Procurator Fiscal with no prior involvement in the investigation into the bombing of Pan Am 103. Independent counsel would therefore be expected to decide on what action should be taken.

Current Status: Answered by James Wolffe QC on 02/03/2017

Question S5W-06832: Alex Neil, Airdrie and Shotts, Scottish National Party, Date Lodged: 02/02/2017

To ask the Scottish Government whether it remains the case that neither the Lord Advocate nor the Crown Office and Procurator Fiscal Service personnel involved in Lockerbie-related matters would take part in the consideration of the Police Scotland report on Operation Sandwood and that an independent counsel would consider the report and, if so, who this counsel will be.

Answered by James Wolffe QC (02/03/2017):

As has been confirmed previously, in accordance with normal practice any report emanating from Operation Sandwood will be dealt with fairly and robustly by independent counsel, supported as required by a senior Procurator Fiscal with no prior involvement in the investigation into the bombing of Pan Am 103. Independent counsel will be appointed if any report alleging criminality is received.

Current Status: Answered by James Wolffe QC on 02/03/2017

What is at stake is the reputation of the Scottish justice system

[Today's edition of The Scotsman carries an article by James Robertson under the headline Lockerbie anniversary: ‘One terrible injustice cannot be cancelled out’. It reads as follows:]

Like many other people, I remember exactly where I was on the night of 21st December 1988. I was a bookseller in what was then the only Edinburgh branch of Waterstones, on George Street, and that evening the shop was crowded with customers choosing Christmas presents. Popular titles included Stephen Hawking’s A Brief History of Time and the paperback of Scott Turow’s Presumed Innocent. The phones were ringing constantly as people called to ask what time we closed or whether we had a copy of this or that book.

At about eight o’clock I answered the telephone and recognised the voice of a friend, another bookseller, on the line. He had just heard a radio report that a plane had crashed onto the town of Lockerbie. It sounded like a major incident and since, mistakenly, he thought I was from that part of the country he wanted to let me know. I thanked him and went back to work.

By the time I got home and switched on the television it was the only news story. Pan Am flight 103, a Boeing 747 passenger jet en route from London to New York, had fallen out of the sky and, as would be quite quickly established, all 259 passengers and crew, and a further eleven people on the ground, had been killed. A few days later, everybody’s worst fears were confirmed: this was not the result of bad weather or mechanical failure, but of a bomb having been placed on the plane.

That night is now half my lifetime away, and belongs to a world in which there was no internet, and in which news in the UK was accessed entirely via newspapers, radio and four TV channels. Through all the subsequent years of political, social and cultural change, the story of the Lockerbie bombing has never faded. In part this is because of the sheer scale of it: an event like no other in recent Scottish history − except perhaps the Piper Alpha disaster of the same year, which claimed the lives of 167 oil platform workers. But Piper Alpha was an accident, whereas the destruction of Pan Am 103 was an act of mass murder. It led to the biggest ever Scottish criminal investigation and, after more than twelve years, to the conviction of one Libyan man, Abdelbaset Ali al-Megrahi.

The response to the bombing brought out some of the very best in human behaviour − kindness, care, courage and dignity. It also left deep emotional wounds that for some will never fully heal. It is completely understandable that many relatives of the victims, people of Lockerbie, police and other emergency workers involved in the traumatic aftermath have long wanted the story to be over, or as ‘over’ as it ever can be. But after the long investigation, then the trial of Megrahi and his co-accused Lamin Khalifah Fhimah at a specially convened Scottish court in the Netherlands, and finally the conviction of Megrahi alone in 2001, too many questions were left unanswered for this to be possible.

Well-founded doubts about aspects of the investigation have existed almost since the night the plane came down. It is, for example, highly questionable whether the bomb was ingested into the air traffic system at Malta, as the prosecution case against Megrahi and Fhimah contended, rather than at Heathrow. There were serious shortcomings in the identification by Tony Gauci, a key witness, of Megrahi as the purchaser of clothes packed into the bomb suitcase. Likewise, there were clear failings in the metallurgical analysis of the timer used to trigger the bomb. The prosecution failed to disclose vital evidence to the defence. And the indictments against Megrahi and Fhimah, without which no case against them could have been brought, were based on information supplied by a witness found to have been completely unreliable and untrustworthy. Nevertheless, the juryless court acquitted Fhimah and, almost entirely on the basis of circumstantial evidence, found Megrahi guilty. The United Nations-nominated observer Professor Hans Köchler immediately condemned aspects of the judgement as ‘arbitrary’, ‘inconsistent’ and ‘irrational’ and said that the trial as a whole was ‘not fair and was not conducted in an objective manner.’

Concerns that the conviction might be a gross miscarriage of justice were reinforced over the years as new information emerged that had not been considered during either the trial or at Megrahi’s first appeal. The report of the Scottish Criminal Cases Review Commission (SCCRC) on his conviction, made public by the Herald newspaper in March 2012, found six grounds which might have warranted referring the case to the Court of Appeal.

But by that time Megrahi was back home in Libya with terminal cancer, having dropped his second appeal at the time of his controversial release from prison, on compassionate grounds, in 2009. Even his death in May 2012 did not draw a line under the whole affair.

The campaign group Justice for Megrahi (JfM), to which I belong, was founded in 2008. Its signatories include some of those who lost loved ones in the disaster, such as Jim Swire and John Mosey, the ‘architect’ of the Kamp Zeist court arrangements Professor Robert Black, and various journalists, writers, lawyers, politicians, former police officers and other citizens who independently reached the conclusion that something had gone very wrong in the Lockerbie investigation and the subsequent prosecution of Mr Megrahi. In September 2012 the committee of JfM drew up six − later increased to nine − allegations of criminality in connection with the Lockerbie investigation and trial, relating to possible malpractice by Crown Office personnel, police and other prosecution witnesses. The allegations were submitted to the then Justice Secretary Kenny MacAskill in strict confidence. They were passed nonetheless to the Crown Office, which at once publicly denounced them as ‘without exception, defamatory and entirely unfounded’ even before the dossier of detailed evidence had been examined by the police.

This intervention, we felt, represented both prejudice and an intolerable conflict of interest since the Crown Office would ultimately decide whether or not the allegations had any validity. Furthermore, JfM’s allegations would be dealt with by Dumfries and Galloway Police, the force which had carried out the original investigation. None of this gave us confidence that these matters would be treated systematically, objectively and fairly. Indeed, one of the most important outcomes of the Lockerbie saga has been to expose serious faults in the mechanism and procedures of Scottish justice.

However, in 2013 Police Scotland came into being, and the treatment of our allegations changed substantially. ‘Operation Sandwood’ was established, which at its conclusion was described by the police as ‘a methodical and rigorous inquiry using our major investigation framework under the direction of an experienced senior investigating officer.’ We have no argument with that description. Regular liaison meetings took place between JfM and Police Scotland, who engaged a QC completely independent of Crown Office to review the findings of Operation Sandwood. These were unprecedented arrangements. The current Chief Constable, Iain Livingstone, had oversight of the entire investigation, which was completed on 21st November this year.

The Sandwood report has now been submitted to Crown Office. The police concluded that there was ‘no evidence of criminality and therefore no basis to submit a standard prosecution report’. Crucially, however, Police Scotland’s statement goes on to say, ‘The material collated during the inquiry and the findings and conclusions reached have relevance to … the potential appeal against conviction lodged on behalf of the late Mr Megrahi.’

JfM does not, of course, have any knowledge of the details of what the Sandwood report contains, but we are confident that the police have indeed been ‘methodical and rigorous’. We know from the amount of time and resources spent on Operation Sandwood that the police did not deem our allegations either vexatious or without substance. And when the report is received, as it must be, by the SCCRC -- the body currently considering whether to recommend that Mr Megrahi’s family be allowed to make a fresh appeal against his conviction -- we firmly believe that its contents will contain enough information to make that recommendation inevitable.

Such a development, long overdue, would enable all material relevant to the case to be reviewed in the Court of Appeal. JfM believes that in the absence of a public inquiry, which the Scottish Government has consistently refused to establish, this is the only way to have all the evidence examined and to bring some kind of finality to this aspect, at least, of the Lockerbie story.

What is at stake is not just whether there was a miscarriage of justice in Megrahi’s conviction but the reputation of the Scottish justice system. None of this will lessen the pain and grief felt by the families of the dead. But the terrible injustice perpetrated on that December night thirty years ago is not cancelled by another injustice: it is compounded.

The full truth about the Lockerbie bombing is not yet known, but gradually we are moving towards it.

We must hope that some of those, now elderly, who have sought that truth for so long, are still here when it is brought into the light.

Genuinely independent prosecutor needed for JFM criminality allegations

[At its meeting on 21 April 2015 the Scottish Parliament’s Justice Committee resolved to write to the Lord Advocate enquiring how the Crown Office proposed to deal with the forthcoming Police Scotland report on Justice for Megrahi’s allegations of criminal misconduct on the part of police officers, prosecutors and Crown forensic scientists in the Lockerbie investigation, prosecution and trial. This arose out of the suggestion made on this blog that a special prosecutor or independent counsel might be required, in the light of the Lord Advocate’s publicly expressed views about the merits of JFM’s allegations and the character of JFM members. 

The Lord Advocate replied to the committee’s inquiry in a letter dated 8 May: “I had anticipated this as a potential issue some time ago given my involvement in the investigation and the nature of the allegations which have been made.  Arrangements were therefore put in place for an independent Crown Counsel who has not been involved in the Lockerbie case to deal with this matter if and when the need arises.”

JFM’s response to the Lord Advocate’s letter has now been posted on the Justice Committee’s website. It reads as follows:]

Following the Lord Advocate’s 8th May response to the 28th April letter from the Convener of the Scottish Parliament Justice Committee, the Committee of Justice for Megrahi (JFM) wishes to make the following observations. 

If the Lord Advocate is proposing a Crown Office advocate depute as an independent prosecutor to consider any Police Scotland report stemming from the investigation of JFM’s 9 allegations of criminality, known as Operation Sandwood, such a proposal falls well short of JFM’s concept of an independent, unbiased and constitutionally sound approach. 

1. JFM has on several occasions drawn the attention of the Justice Committee to the unprecedented, highly irresponsible and prejudicial public outbursts in which both the Lord Advocate and the Crown Office as a whole have not only grossly distorted the content of our allegations but also vilified us for having had the temerity to level the allegations in the first instance. How can any representative of a body that has described, in the media, JFM’s allegations as being ‘without exception, defamatory and entirely unfounded’ and ‘false and deliberately misleading’ make a fair and unprejudiced consideration of any evidence presented by the police? We believe that by ‘going public’ these authorities, being fully aware of ‘Sandwood’, have destroyed their constitutional independence and have threatened the integrity of that enquiry.  

2. It appears inevitable that these public interventions will have had an effect on potential witnesses. Witnesses are now expected to give evidence against a background of this very public ‘interference’ by Scotland’s senior prosecution authorities. Those authorities have consistently sought to dismiss the ‘conspiracy theorists’ behind the ‘Sandwood’ criminal allegations and to underline their opinion that Mr Megrahi and his accomplices are the only guilty parties in the case. We fear that certain Crown, Police and both expert and ordinary witnesses, encouraged by these statements, might seek to withhold or alter legitimate evidence which they could otherwise give to Operation Sandwood. 

3. In his letter of 8 th May, the Lord Advocate gives the impression that he is disengaging from involvement in consideration of the final police report on the matter. However, if he is responsible for the appointment of the ‘independent Crown Counsel’, from the outset, he clearly plays a pivotal role in the outcome of the prosecutor’s consideration of the report. Any such counsel should be chosen by a person or body entirely outwith the Crown Office. 

4. It is naïve to expect that an advocate depute in the Crown Office, appointed by the Lord Advocate and subject to his instructions, and whose tenure of that office depends entirely upon his decision, is likely to instruct proceedings of any kind and thus effectively say that the Lord Advocate was so publicly wrong. It is also extremely unlikely that he/she will easily set themselves against their colleagues in the Crown Office who have already made their position clear on several occasions. Equally importantly it is certain, no matter the decision reached, that in the minds of the protagonists on either side of the Lockerbie debate, the general public, the media and other commentators, justice will not have been seen to be done. It should be made clear that both the final decision on prosecution and the conduct of any prosecution rest with the independent (and independently appointed) counsel not tainted by any association with the Lord Advocate or any member of the Crown Office. 

5. Moreover, given that the Lord Advocate is head of Scotland’s prosecution service, it would seem inevitable that any final conclusions arrived at by the ‘independent’ prosecutor he mentions would, by dint of his position, find their way onto the Lord Advocate’s desk for the ultimate stamp of approval.  

6. Whilst JFM is, quite correctly, not privy to the operational detail relating to ‘Sandwood’, we have been most impressed by the diligence and professionalism of the officers working on the allegations. In the course of their investigations, Police Scotland have been working in tandem with an independent QC: how then will the Lord Advocate’s proposal fit together with the role already being played by Police Scotland’s QC? 

It is plain to see from the unethical, prejudicial and ill-judged statements issued by the Crown Office that there is a straightforward conflict of interests with respect to any role which that body can play in this case. 

The UK is signed up to the United Nations International Association of Prosecutors (IAP). In its pronouncements, the Crown Office has displayed a flagrant contempt for and disregard of the IAP principles as laid out in the IAP document Standards of Professional Responsibilities and Statement of Essential Duties and Rights of Prosecutors. Particularly, but not exclusively, these responsibilities include the duty of a prosecutor not to act in their own interest but always to serve and protect the public interest, be free from political interference, and generally be consistent, independent, impartial and transparent (as outlined in articles 1 through 4). The Crown Office is clearly in breach of these principles, and, as previously mentioned, no person currently in Crown Office can be impartial. The Report must be made to a totally independent person. http://www.iap-association.org/getattachment/34e49dfe-d5db-4598-91da-16183bb12418/ Standards_English.aspx 

The UK is also signed up to the Council of Europe. In its document The Role of Public Prosecution in the Criminal Justice System, adopted by the Committee of Ministers of the Council of Europe on 6th October2000.

Article 1 states: ‘Public prosecutors’ are public authorities who, on behalf of society and in the public interest, ensure the application of the law where the breach of the law carries a criminal sanction, taking into account both the rights of the individual and the necessary effectiveness of the criminal justice system.’

Article 9 states: ‘With respect to the organisation and the internal operation of the Public Prosecution, in particular the assignment and re-assignment of cases, this should meet requirements of impartiality and independence and maximise the proper operation of the criminal justice system, in particular the level of legal qualification and specialisation devoted to each matter.’ 

Article 24 states: ‘In the performance of their duties, public prosecutors should in particular: a. carry out their functions fairly, impartially and objectively.’ 

Article 34 states: ‘Interested parties of recognised or identifiable status, in particular victims, should be able to challenge decisions of public prosecutors not to prosecute; such a challenge may be made, where appropriate after an hierarchical review, either by way of judicial review, or by authorising parties to engage private prosecution.’ http://www.procuracassazione.it/procuragenerale-resources/resources/cms/documents/ COE_CM_20001006_Recommendation_2000_19_en.pdf

The Crown Office has turned Scottish justice into an embarrassing, laughing stock and developed this case into a running sore. We strongly believe that in order to acquire a fair, unprejudiced and truly independent reading of the final police report a special prosecutor must be appointed by a process independent of the Lord Advocate and the Crown Office, and must be seen to exercise his/her decision-making and prosecutorial functions without reference to the Lord Advocate and the Crown Office. 

Since the Lord Advocate’s position and independence as head of the prosecution system in Scotland is enshrined in the Scotland Act, such a mechanism must be put in place by the Lord Advocate himself, failing which, the Scottish Government should seek from the UK Government a section 30 Order in Council to enable the Scottish Government to do so. 

On 28th February 2007 the then Lord Advocate, Dame Elish Angiolini, in giving the inaugural KPMG Annual Law Lecture highlighted the position of the Lord Advocate in the 21st century by stating:  

‘The fact that prosecution decisions are taken independently does not mean that they are taken unaccountably. It is for the Parliament to decide whether the Lord Advocate is carrying out that vital function to its satisfaction, not as a matter of party politics, but as a matter of sound administration. 

‘The result is that the present system leaves an inefficient Lord Advocate, or an irresponsible Scottish Executive, nowhere to hide. If the prosecution system fails, then Parliament can hold the Lord Advocate, and the administration of which she forms a part, accountable for that failure. 

‘As Lord Advocate, I exercise considerable powers, and carry great responsibilities. And no sensible Minister ever takes Parliament lightly. I note, in passing, that the Justice Committees of the Scottish Parliament routinely scrutinise the work of the Law Officers. That notion is also now being discussed at Westminster. I would like to make one further point, touching on accountability. The prosecutor's judgement in starting a prosecution is clearly justiciable in the courts. That is as it should be.’ http://www.publications.parliament.uk/pa/cm200607/cmselect/ cmconst/ 306/306we13.htm  

This seems to be pertinent and timely advice to the present holder of this historic office.

Throughout all of this, it appears that the Crown Office, in pursuit of obtaining and maintaining convictions above any other principle, has lost sight of its most fundamental raison d’être: the service of justice.