“I pray we may all with honesty seek and learn the truth”

[What follows is the text of a letter to The Times by Dr Jim Swire.  A week after it was sent, it has not been published and so I am taking the liberty of posting it here:]

I note your article from Mr Linklater concerning the security of the verdict reached against Mr Megrahi, regarding the murder of my daughter Flora and 269 others in the Lockerbie air disaster. [RB: Magnus Linklater is appointed CBE in today’s New Year Honours List.]

A brilliant medical student at Nottingham, Flora, who was only on her way to see her US boyfriend over Christmas, had just been accepted to continue her medical studies at Cambridge.

I have not enjoyed being accused by Mr Mullholland's Crown Office, as a member of the Justice for Megrahi (JFM) group's committee, of deliberate lying over this case.

Nor do I admire the tastelessness of your newspaper in publishing this contentious article on the very day of the 24th anniversary of my innocent daughter Flora's brutal murder. I am far from alone among UK relatives in questioning the probity of the management of this terrible case.

There are at present allegations of criminality lodged by the committee of JFM against members of the Crown Office and the Scottish police force over the conduct of the Lockerbie investigation and trial.

I will not stoop to making allegations now in your pages against the Crown Office, the Lord Advocate, nor indeed Mr Linklater until the allegations have been objectively investigated.

Your readers should remember that Benedict Birnberg, Gareth Peirce, Michael Mansfield QC, David Wolchover, Len Murray, Ian Hamilton QC, Jock Thomson QC, John Scott QC and Emeritus Professor (of Scots law) Robert Black QC are among many other lawyers who question the probity of this verdict.

However, in the spirit of the season, I offer all who contributed to this article a happy 2013, in which I pray we may all with honesty seek and learn the truth. That is actually all that we the relatives are asking for.  

[The article in today’s edition of The Times (behind the paywall) in which Mr Linklater’s honour is reported, contains the following paragraph:]

Mr Linklater remains one of most respected figures in Scottish journalism, with the skill and compassion to report sensitively on the tragedy of Lockerbie — “a story that has stayed with me ever since” — as well as the humour to deliver an agonised column about the iniquities of speed cameras.

Pro-Megrahi backers flayed by new Lord Advocate

[This is the headline over an article by Magnus Linklater (whose views on Lockerbie are well-known) in today’s edition of The Times.  It reads as follows:]

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. [RB: Justice for Megrahi has made no defamatory comments against any High Court judge.  It is not defamatory of the Zeist judges to say that they were wrong in finding Megrahi guilty. Lawyers all the time say that judges got things wrong (and almost every time an appeal is allowed, other judges say so too). And in the Lockerbie case even the SCCRC concluded that, on an absolutely crucial point, no reasonable court could have reached the conclusion that the Zeist judges reached.  JFM in its recent allegations of criminality was very careful not to say that then Lord Advocate (and now High Court judge) Colin Boyd had attempted to pervert the course of justice.]

Mr Mulholland, who has relaunched an investigation into what he calls an act of “state-sponsored terrorism” by the former Libyan leader Colonel Gaddafi, says that he has been through all the evidence and is convinced that al-Megrahi’s conviction was “safe”.

An outside counsel invited by the Lord Advocate to conduct an independent review of the evidence has also concluded that the conviction was sound. [RB: It would be interesting to know the identity of this outside counsel.  Here, by contrast, is a short list of eminent lawyers who have concluded that the conviction was not sound: Benedict Birnberg, Gareth Peirce, Michael Mansfield QC, David Wolchover, Len Murray, Ian Hamilton QC, Jock Thomson QC, John Scott QC.  There are many more.]

“I am hugely frustrated that there is an unfounded attack on the integrity of the judges involved in the process,” Mr Mulholland said. “I saw a report on the BBC that [claimed] a high court judge — Colin Boyd, Lord Advocate at the time — perverted the course of justice. And it frustrates me that they’re not in a position to answer these allegations, these can be made without being challenged and without any real foundation.” [RB: At least Mr Mulholland does not here make the error of accusing JFM of responsibility for the BBC’s egregious misinterpretation of the English language.]

He compared the allegations to the uncontrolled media attempts to blacken the name of Lord MacAlpine, the former Conservative Party treasurer, over child abuse.

“I deplore any of that,” he said. “The appropriate place for voicing any concerns about the evidence is before a court of law, not in the court of public opinion, or the media. I haven’t spoken to the people who are affected by this, but I would imagine that they are frustrated that their reputations can be so easily attacked, and they can’t do anything about it.”

Mr Mulholland, who has been to Libya to make contact with the new regime, is hopeful that permission will be given soon to send Scottish police officials to Tripoli to gather evidence that would not only buttress the case against al-Megrahi, but reopen the wider plot to down the US airliner.

He believes that a criminal investigation rather than a public inquiry is the best way to resolve the 1988 Lockerbie case.

“I take the view that the calls for a public inquiry are essentially to set up a vehicle which would be a surrogate criminal court, he said. “I believe that the guilt or innocence of al-Megrahi is entirely a matter for the courts.”

He issued a challenge to the al-Megrahi apologists: “If you don’t like the set-up of the justice system, then what you do is you change it, through the democratic vehicle of parliament. You change the law.”

Mr Mulholland says he has studied all the claims advanced in the book Megrahi: You are my Jury by the writer John Ashton, and finds no evidence to support them. He urged those arguing that al-Megrahi was innocent to put any additional evidence to the Scottish Criminal Cases Review Commission.

“Mr Megrahi stood trial before a Scottish court and was convicted by three judges unanimously, then an appeal, where five judges unanimously upheld the conviction, hearing additional evidence about the Heathrow break-in [the claim that the bomb went aboard there],” he said. “Having heard all the arguments presented to them, they upheld the conviction. Part of our justice system is the [commission] for which I have the highest regard. Anyone who is concerned about a conviction can make an application to the commission.”

He added: “The commission had access to all the Crown’s papers, and they took the view that in relation to a very limited number of grounds, the case should be referred back to the appeal court, which they did. The defence were entitled to expand the appeal beyond the grounds of referral, and they included a number of grounds which had been rejected by the commission, and the court was in the process of hearing that appeal when al-Megrahi abandoned his appeal.

“Now, whatever you think, and everyone is entitled to their view as to whether he is guilty or not, the courts took the view that following a trial and an appeal and a subsequent appeal, which was abandoned, al-Megrahi’s conviction still stands and that is the application of the rule of law.”

Mr Mulholland believes the evidence shows that the previous Libyan regime under Colonel Gaddafi was involved in “an act of state-sponsored terrorism”.

He is working with the FBI, the US Attorney-General and the Foreign and Commonwealth Office to pursue investigations. “We are applying the rule of law,” he said. “If you follow the evidence, it leads to Libya.”

Twenty-four years on: why Lockerbie does not simply go away

Twenty-four years ago today Pan Am 103 exploded in the sky above Lockerbie. In May this year, Abdelbaset al-Megrahi, the Libyan convicted of murdering those killed aboard the aircraft and on the ground, died. Why, therefore, does the Lockerbie case not simply fade into the mists of history? Here are some of the reasons:

1.  From me: Lockerbie: A satisfactory process but a flawed result and The fairy story of the Crown's independence

2.  From Dr Morag Kerr: Lockerbie: Fact and Fiction

3.  From Gareth Peirce:  The framing of al-Megrahi

4.  From David Wolchover:  Exploding Lockerbie -- Part 1 and Part 2, and A postscript on Lockerbie

5.  From James Robertson:  The Lockerbie affair and Scottish society

Your assumption of Megrahi’s guilt is based on no more than the fact that he was convicted

[What follows is the text of a letter dated 21 May sent by David Wolchover to Prime Minister David Cameron:]

The Destruction of Pan Am flight 103 over Lockerbie on 21 December 1988

I am a practising barrister, Head of Chambers Emeritus at 7 Bell Yard and an established legal author. Over the last year I have contributed a number of articles to Criminal Law and Justice Weekly on the destruction of Pan Am flight 103 over Lockerbie on 21 December 1988, and I also maintain an on-line monograph on the issue, hosted at www.DavidWolchover.co.uk. The monograph is an expansion of the material set out in the CL&JW articles. I am enclosing herewith a bundle of the CL&JW articles, a print out of the current edition of the monograph, and a copy of an article I contributed last year to the Jewish Chronicle entitled “Lockerbie: time for us to reveal the true culprits”. All are commended for your attention. [RB: these documents can be found on David Wolchover's website, or through this blog's search facility.]

The drafting of this letter was already well advanced when news came through of the death of Abdelbaset al-Megrahi. In substance his death changes nothing, save that large numbers of ill-informed people will be saying to themselves “not a moment too soon.”

On the 29 February this year, immediately prior to the launch of John Ashton’s book Megrahi: You are my Jury, 10 Downing Street issued a statement characterising the book as “an insult to the Lockerbie relatives.” It is understood that your office had not at that stage been treated to sight of the work. Then, on Monday, 14 May, referring to Abdelbaset al Megrahi’s release in 2009 by the Scottish authorities, you stated:

“One thousand days on, this is yet another reminder that Alex Salmond’s Government’s decision to free the biggest mass murderer in British history was wrong and an insult to the families of the 270 people who were murdered.”

Contrary to the supposition of some observers I do not believe that this was grandstanding inspired primarily by the perception of an opportunity to upstage Mr Salmond. The passionate tones of your statement demonstrate that you were (characteristically, if I may respectfully say so) speaking from the heart.

Today it is reported that in Chicago yesterday you dismissed the possibility of a new UK Lockerbie inquiry, stating that Megrahi’s trial was

“properly conducted . . . This has been thoroughly gone through. There was a proper process, a proper court proceeding and all the rest of it.”

With the greatest of respect, the fact that the trial may have been conducted with all due decorum and with all the niceties attendant upon safeguarding the defendant’s right to legal representation, strict observance of the rules of evidence and procedure, and with an apparent attention to detail, does not mean that the judges “got it right.” 

The fact is that not only did they not “get it right” but that, amazing as it might seem and notwithstanding their enormous authority and professional distinction, they made an utter hash of the evidence and accepted as reality a quite ludicrous series of propositions, as any sensible scrutiny of the evidence plainly reveals. As far as the Malta end of the story is concerned, their finding was based on nothing short of petitio principii, assuming what is to be proved as a component of the would-be proof, as you will see from my analysis. As to what is supposed to have taken place in Frankfurt they were actually led to overlook one vital piece of evidence which of itself and even if the rest of the evidence had been coherent and logical would have brought down the whole edifice like a house of cards (see Vol 175 CL&JW, Aug 27/Sept 3, p.510, enclosed). So even there it was not all “thoroughly gone through.”

Sadly, the verdict has become the king’s new clothes, a comforting illusion for those, including many bereaved relatives, who would rather seek refuge in apparent certainty than face the terrible realisation that the trail to the true culprits will long have gone cold, with the scent never likely to be picked up again by even the most dogged bloodhound.

In subscribing to the validity of Megrahi’s conviction you take a position which is opposed by what has now grown into a substantial body of authoritative and informed individuals of diverse shades of political opinion from the worlds of politics, journalism, medicine, the law and other professions. Importantly also, a great many if not most of the bereaved British families – tenaciously led of course by Dr Swire – and many of the American relatives now utterly reject the case for upholding Megrahi’s conviction.

In the face of that weight of opinion and having regard to the details of the case your outspoken position at first blush seems puzzling. But I feel convinced that your assumption of Megrahi’s guilt is based on no more than the fact that he was convicted at Zeist and that his conviction was upheld at the original appeal. It is hardly surprising that you would have had little time to assimilate for yourself the details of the case to a degree necessary to form a fully informed view, though it is perhaps unfortunate (as I assume to be the case) that someone at least among your staff was not briefed to make a detailed study of the details and to report back to you.

However, were you to get to grips with those details it is inconceivable that as a rational and independent thinker, if I may say so, you would not fail to come to appreciate that the Crown’s case quite simply flies in the face of common sense and is fundamentally and utterly unsustainable.

Libya was not involved. The true culprits were almost certainly the PFLP-GC led by the arch terrorist Ahmed Jibril. Such pointers to that proposition as are available are thoroughly analysed in the enclosed texts.

But my purpose in writing is not to take on the challenge of trying to squeeze into a page or two the essence of the argument disavowing Megrahi’s conviction, though I am sure that others more qualified than I might well succeed in making a powerful case in a few sentences.

My particular purpose in writing is to pose the following questions, the specific answers to which I feel sure a suitable official can answer.

1. In making your pronouncement were you expressing a purely personal opinion or were you articulating the coalition’s collective standpoint?

2. If you were expressing no more than a personal opinion, what was the depth of your study of the case? What materials did you consult?

3. If you were speaking for HM Government, rather than in a purely personal capacity, was it with the express approval of cabinet colleagues?

4. If you did not have their express approval, were you nonetheless purporting to speak for the Government using some form special authority as Prime Minister akin to an exercise of the royal prerogative?

5. If you did have the express approval of colleagues, please identify the forum in which that approval was registered.

6. If approval was given in cabinet please state

(a) whether approval was by majority or unanimous;

(b) whether cabinet members voted on the matter on the basis of being required to deliberate of the facts in the case,

(c) if so, what protocols were adopted for ensuring that they were briefed on the evidence and issues in the case to a level sufficient for them to make an informed and rational judgment, and

(d) whether the members were expected to acquaint themselves with the facts before voting on whether to give approval to your statement, to a degree sufficient to make a rational judgment,

7. If approval was given in cabinet but not on the basis of deliberation on the detailed facts by individual members please state whether it was given on the basis of a vote taken in cabinet to adopt the judgment of the Scottish trial and appeal court judges on the assumption that having respectively tried the case and heard the first appeal their view could not properly be gainsaid by lay politicans.

I would be most grateful to receive a substantive answer to these questions from your office.

"I accuse..."

[This is the headline over an article by me published today on the website of Scottish lawyers’ magazine The Firm. It consists of verbatim extracts (in translation) from Émile Zola’s famous public letter “J’accuse...” on the Dreyfus affair.  The final two paragraphs of my article read as follows:]

With the substitution of Megrahi for Dreyfus, Scotland for France, and the office of First Minister for that of President of the French Republic, every word can with equal justice be addressed to Alex Salmond. The magnitude of the Scottish miscarriage of justice and the flaws in the investigation, prosecution and adjudication that led to it have been exposed in the SCCRC’s Statement of Reasons published by The Herald; in John Ashton’s book Megrahi: You are my Jury ; in David Wolchover’s monograph Culprits of Lockerbie; and in Dr M G Kerr’s article An overview of the Lockerbie case.  There is now no shred of justification for continuing to maintain that all is for the best in the best of all criminal justice systems or  -- the coward’s fallback position -- that, while there may have been a few technical, procedural defects in his trial and conviction, Megrahi was clearly guilty anyway, so what does it matter?

Zola’s letter was headed “J’accuse”.  Although the Lockerbie investigation, prosecution and conviction occurred under UK Conservative and Labour administrations, it is Mr Salmond and the Scottish Government that today have the power to put right the disgraceful miscarriage of justice that occurred on the watch of two of their political opponents; and it is accordingly the Scottish SNP Government that today stands accused. The only honourable course of action open to that government is to institute an independent inquiry under the Inquiries Act 2005 into the performance of the Scottish criminal justice system in the Megrahi case, as a matter which has caused grave public concern. 


[I am grateful to Dr Ludwig de Braeckeleer, author of the encyclopaedic 174-part Lockerbie series Diary of a Vengeance Foretold, for drawing my attention to an article entitled The Dreyfus Affair: Enduring CI Lessons published in the March 2011 issue (vol 55, no 1) of the journal Studies in Intelligence.]

David Wolchover responds to a challenge

Barrister David Wolchover has returned to the Lockerbie case in a further article in the Criminal Law & Justice Weekly. It is a response to criticisms on this blog by Baz of one of his earlier articles. Unfortunately, access to Mr Wolchover's latest piece requires subscription to the magazine.  However, I shall provide further details once the full text becomes available and I have returned to South Africa from Namibia.

[Posted from an internet cafē in Lűderitz.]


I am grateful to David Wolchover for sending me a copy of the text of his article Lockerbie: The True Culprits - A Postscript on Proof. It can be read here.

English barrister demolishes Crown's Lockerbie Megrahi evidence

The indefatigable David Wolchover, barrister and Head of Chambers Emeritus at 7 Bell Yard, has recently returned to the charge over Lockerbie and the Megrahi conviction in three articles in the Criminal Law & Justice Weekly.  Synopses of the articles can be found here and here and here. 

Mr Wolchover has also produced a magnificent 26,000 word, 24-page, monograph entitled Culprits of Lockerbie: Gaddafi or the Extemists of Palestine in which he dissects the evidence led at Zeist against Megrahi and Libya and explores (a) the evidence for Heathrow (rather than Malta-Frankfurt) insertion of the bomb suitcase and (b) the evidence pointing towards PFLP-GC responsibility. The monograph can be read here. It has now been revised and expanded (see especially pages 6 and 7) to take account of comments by baz on this blog.

Previous Lockerbie articles by David Wolchover are referred to on this blog here.

An epistolary exchange (continued)

[On 6 September 2011 this blog featured a three-item correspondence between barrister and author David Wolchover and the Scottish Government under the heading An epistolary exchange. Here are two further items:]

4.  28 September 2011

Dear Mr Wolchover
‘Thank you for your further e-mails of 2 September and 12 September regarding earlier correspondence on the conviction of Abdelbaset Ali Mohmed al-Megrahi.

As we made clear in our earlier reply and you quoted in yours, "An independent judiciary is a cornerstone of Scottish justice. It would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case."

This should be taken to mean exactly what it says. The Scottish Government does not doubt the conviction of Mr al-Megrahi.

Insofar as Ministers have ever had a duty in respect of possible miscarriages of justice, that responsibility passed in 1999 to the Scottish Criminal Cases Review Commission. This development has been widely welcomed both for further removing Ministers from involvement in the decisions of the criminal courts and for allowing greater scrutiny of cases than was formerly possible. Since its inception the SCCRC has referred over 100 cases, including that of Mr al-Megrahi, to the High Court.

Thank you for writing to us with your views.’

Lockerbie Team
Scottish Government

5.  29 September 2011

Dear Mr [...]

I thank you for your message. It is gratifying to discover that it took a feature article by me in that internationally renowned weekly, the Jewish Chronicle - an article which has "gone viral" on the internet - to elicit a response to letters which I was led to suspect were deliberately and therefore discourteously going unanswered in the belief that I would not bother to pursue the correspondence. How wrong you would have been! In fact I was in the process of drafting a further chaser (by way of capitalising on the article) when your message came in and I note with some surprise that you make no mention of the article, as if your response was a pure coincidence.

It is with some justice therefore that I described the Scottish Government's position as "stonewalling." 

I do not wish to get caught up in semantics but I am afraid that I am bound to disagree with the implications of your reasoning.

With respect, contrary to what you aver the admittedly defensible (if pusillanimous) position that "[i]t would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case" does not equate to the statement that the Government "does not doubt the conviction of Mr al-Megrahi." 

Incidentally, I think you meant "the safety of Mr al-Megrahi's conviction." Few doubt he was convicted.

As I pointed out in my previous letter, there is a principled difference between on the one hand the executive studiously regarding itself as constitutionally debarred from making a public judgment on a judicial decision (whether to agree or disagree) and on the other hand collectively making a positive avowal of agreement with it. The statement "I do not doubt" a certain proposition unequivocally expresses a value judgment. 

However, I concede the possibility that such judgment may be arrived at either by a personal consideration of the facts or vicariously. Thus, you (and the unidentified earlier spokesperson/correspondent) may have been meaning to imply that the government have adopted the following position: "We as a cabinet implicitly trust the opinion of the judges on this matter. They have asserted such and such is the case, and by reason of our absolute confidence in their authority, expertise and wisdom we do not doubt they are right though we have not studied the facts ourselves."

So I modify my original questions to you. 

1. Have the cabinet considered the facts of the case in depth?

2. If not, have they collectively resolved to express a vicarious confidence in the judges' decision?

3. If the latter, when was that determination made?

4. If they have not made such a resolution was the decision to pronounce confidence in the verdict made on behalf of the government by certain cabinet members (eg the First Minister, the Minister of Justice, the Lord Advocate) without consulting the rest of the cabinet? 

5. Was there any discussion over the question whether to go beyond simply stating that it was not the cabinet's place to make a value judgment on the merits?

6. If the decision to pronounce confidence in the verdict was made by the cabinet collectively was there nonetheless any dissent?

Please forgive my inquisitiveness, but the destruction of Pan Am 103 is a matter of such considerable international importance and the trial verdict now so controversial, if not widely discredited, that it is surely right to seek an account of the process by which the Government of Scotland came to make a pronouncement of confidence in the verdict.
 

Perhaps when the Libyan National Transitional Council becomes a little more confident it will no longer feel the need to kowtow to official Scottish amour propre and may begin to apply the sort of pressures to which I referred in my article.

David Wolchover

Lockerbie: time for us to reveal the true culprits

[This is the headline over an article by David Wolchover published today on the website of The Jewish Chronicle.  It reads as follows:]

The Arab Spring may have heightened tensions between Egypt and Israel but, on the upside, it also achieved Colonel Gaddafi's overthrow. Strangely, this could actually benefit the Jewish state - but only if Libya takes the initiative.

With Gaddafi gone, the world could recognise, finally, that the perpetrators of the Lockerbie bomb were not from the Libyan secret service, did not include the man who was ultimately convicted, Abdelbaset al-Megrahi, and indeed had nothing to do with Libya. The world could learn that the culprits were the original suspects, a gang of Palestinian terrorists. 

As it takes its first steps, the new Libyan leadership will likely want to remove the stigma of Libya's association with the atrocity of December 1988 and seek international acceptance of al-Megrahi's innocence. A democratic Libya could wield a good deal of clout if it applied the sort of economic and diplomatic pressures Gaddafi used to secure al-Megrahi's release on compassionate grounds to urging the Scottish and British governments to declare him innocent. And they may be pushing at an open door. 

It is no conspiracy theory to claim that the case against al-Megrahi and Libya was manifestly absurd, or that the government knows that. Any study of the details of his trial, a decade ago at Camp van Zeist in Holland, will reveal that, unbelievable as it seems, the Scottish judges who convicted him and rejected his appeal made an utter hash of the evidence. Moreover, they actually missed a key piece of evidence which, alone, would have been enough to sink the prosecution.

The Scottish government say they "do not doubt the safety" of al-Megrahi's conviction, a statement which implies a rational consideration of the evidence. Yet they have stonewalled on revealing whether the cabinet ever actually deliberated on the issue. 

They know they are on weak ground. A little prodding from a powerful, influential, oil-rich country looking to restock its armoury and they will admit the obvious.

How do we know the true culprits were Palestinian terrorists? In July 1988, the battle cruiser USS Vincennes shot down IranAir flight 655 over the Straits of Hormuz. The Americans were steeled for a terrorist response and the Western intelligence community was tipped off, probably by Mossad, that a deal to carry out such an attack had been struck between Iran and Ahmed Jibril, leader of the Popular Front for the Liberation of Palestine, "General Command". This was a Syrian-based ultra-extremist splinter group of the PFLP, with an active cell in West Germany. The deal was that Iran would pay them a bounty to destroy an American civil airliner departing from a European airport. 

As a result, the West German police set up the "Autumn Leaves" surveillance operation, whereby a CIA proxy double-agent named Marwen Khreesat, an expert bomb-maker from Jordan, was infiltrated into the cell. He built a number of similar improvised explosive devices (IEDs) one of which was virtually identical to that which brought down Pan Am flight 103 a mere two months later. 

The device was removed from under his nose and delivered to the cell's airport security expert, Abu Elias. Khreesat tipped off his control in Jordan and the police immediately swooped, rounding up members of the cell and seizing a second device, also virtually identical to the Lockerbie bomb.

"Abu Elias was never seized and the missing IED was never recovered, two facts enough in themselves to prompt the strongest suspicion. Combined with other compelling circumstantial evidence they plainly connected the cell with the bombing."

This is not conspiracy theory. It is non-contentious stuff, most of it given in evidence at Camp Zeist. Yet the judges turned a blind eye to the obvious and based their decision on a series of weak findings. What the Scottish judges did not appreciate was the utter horror Khreesat's CIA controllers must have felt in the aftermath of the Lockerbie tragedy: that a bomb made by their proxy in pursuance of his cover on their behalf was almost certainly used to bring down the Pan Am jet. 

Therein lies the clue to why attention was drawn away from Iran and the PFLP-GC and why Libya became the scapegoat. But Israel has no need to defer to the embarrassed sensibilities of a handful of long-retired CIA staffers. Nor need it wait for pressure to build up from the new Libyan leadership.

Benjamin Netanyahu's government might not want to be seen too openly pressing for al-Megrahi's vindication and the corresponding condemnation of Palestinian extremists. Yet behind the scenes they ought to be attempting to secure that outcome. It can do Israel no harm for the world to learn that her enemies were paid $4.5 million to murder 11 residents of Lockerbie, and 259 innocent passengers, of all religions.

An epistolary exchange

1.  1 August 2011

Dear Alex Salmond,

In its edition of April 9 the highly influential LexisNexis English law journal Criminal Law and Justice Weekly (vol 175, no.15, pp.221-228) carried an article I wrote about the Lockerbie trial entitled “Masking Justice With ‘Mercy’ ”.

Subsequently, in its numbers for July 16 and 23, CL&JW carried a two-parter by me entitled “Exploding Lockerbie” (sub-captioned “David Wolchover goes to the heart of why the trial court got it so wrong in the Lockerbie case”.)

I don’t know whether these articles have been brought to your attention but I am taking the liberty of attaching hereto the pdfs.

I should mention that I have been in practice at the English Bar for forty years and although now semi-retired I was for a number of years Head of Chambers at 7 Bell Yard, Temple Bar, London WC2A 2JR. I am the author of a number of legal text boooks and of numerous articles in a variety of law journals stretching back some 30 years. Please see my website for details (although the website text is five years old, is in need of updating and still includes no reference to the most recent text book of which I was a contributing co-editor, Witness Testimony, Oxford: OUP, 2006).

“Masking Justice with ‘Mercy’” mainly concentrated on the manifest deficiencies in the evidence of the Maltese witness Anthony Gauci, a topic I came to as an offshoot of my long term interest in the topic of witness interviewing by the police (see website for the titles of relevant articles).

Research for that article inspired a wider interest in the details of the case as a whole and “Exploding Lockerbie” was the result.

You will see that most of part 2 consists of an analysis of the evidence of what happened at Heathrow, focusing in particular on what flowed from the account by Pan Am baggage handler John Bedford of his encounter with the mysterious clone of the bomb-loaded Samsonite suitcase.

Obviously I assume that you are thoroughly familiar with much of the evidence in question but, at the risk of indulging in self-advertisement, I believe I am able to claim that my analysis of the Heathrow angle is unprecedented in its novelty and in the depth and breadth of its reasoning.

Although the judges accepted Mr Bedford’s evidence they treated it as irrelevant because they found that the bag noticed by him before the arrival of Pan Am feeder flight PA 103A was not in fact the bomb bag. They did so in spite of the fact that it was no more than about 3 inches from the position in the container AVE4041 in which the bomb bag was located when, according to the experts, the bomb exploded.  In determining that the bomb bag came from Luqa via Frankfurt they evidently lost sight of the fact that their finding implicitly depended on a series of improbable coincidences which in their totality amounted to nothing less than manifest absurdity. In the light of that central element in the whole trial al-Megrahi’s conviction is entirely unsustainable. 

I understand that you have been invited to institute an inquiry into the atrocity but that there may be procedural difficulties about this.

Might I respectfully suggest that your government would attract little criticism in the long run in releasing a detailed and reasoned pronouncement disavowing the conviction and repudiating the finding of the judges. Although I accept that this might involve difficult political ramifications I would hazard it would face no particular constitutional obstacles and in any event the circumstances are truly exceptional.

If, on the other hand, you are of the opinion that the judgment remains logically sustainable I would invite you to indicate to me the basis of your thinking, with hope making no reference to the mere ex officio authority of the trial judges and those presiding over the concluded appeal proceedings.

I am copying this to Kenny MacAskill and Frank Mulholland. 

I very much look forward to your personal response.

Yours sincerely, 
David Wolchover 

2.  30 August 2011 
Dear Mr Wolchover

Thank you for your e-mail of 1 August to Alex Salmond, First Minister. 

Regarding the conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.  I have been asked to reply. 

 

An independent judiciary is a cornerstone of Scottish justice.  It would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case.  Mr Al-Megrahi was tried and convicted by a Scottish court before three judges and his appeal against conviction, heard by a panel of five judges, was unsuccessful.  A second appeal, following a referral from the Scottish Criminal Cases Review Commission, was abandoned by Mr Al-Megrahi.

  

The Scottish Government has always been as open and transparent as possible in this matter which is why, following the announcement last December that the Scottish Criminal Cases Review Commission has been unable to secure the necessary consents to release its statement of reasons in the Megrahi case due to the constraints of the current legislation, we now intend to bring forward legislation to overcome the problems presented by the current consent provisions.

This will allow the Scottish Criminal Cases Review Commission to publish a statement of reasons in cases where an appeal is abandoned, subject of course to legal restrictions applying to the Commission such as data protection, the convention rights of individuals and international obligations attaching to information provided by foreign authorities.

On the broader questions of an inquiry, the Scottish Government do not doubt the safety of the conviction of Mr Al-Megrahi.  Nevertheless, there remain concerns with regard to some of the wider issues relating to the Lockerbie atrocity.  The questions to be asked and answered in any such inquiry would be beyond the jurisdiction of Scots Law and the remit of the Scottish Government, and such an inquiry would therefore need to be initiated by those with the required power and authority to deal with an issue, international in its nature. The Scottish Government would be entirely happy to co-operate fully with any such properly constituted inquiry.

Thank you for contacting us with your views. 

Lockerbie Team 

Scottish Government

3.  2 September 2011 

Dear Sir or Madam

I find myself obliged to address you as such because, although your letter was expressed in the first person you omitted to identify yourself by name or position.

Suffixed to the text of your message was a notice that “[t]he views or opinions contained within this e-mail may not necessarily reflect those of the Scottish Government.” I shall take it that on this occasion you were writing on their behalf.

May I begin by thanking you – whoever you are – for your response to my e-mail of 1 August to Alex Salmond.

I further express my thanks to you for the time and effort which you have taken on behalf of the Government of Scotland in formulating their reply.

You will not be surprised to learn that as a commentator in depth on the Lockerbie case and a practising criminal advocate of some four decades standing I was well aware of the various procedural aspects of this matter to which you advert. However, I was particularly struck by one stark proposition contained in your letter and I am writing for clarification.

In your letter you state:

“An independent judiciary is a cornerstone of Scottish justice. It would not be appropriate for Government to cast doubt on the decisions taken by judges who have listened to all the evidence and reached a decision in a case.”

It might have been understandable if the Scottish Government had confined themselves to this position, albeit it is one which in the very special case of Lockerbie might be regarded as disappointing, not to say pusillanimous.

However, for the Scottish Government to declare, through your letter, that they “do not doubt the safety of the conviction of Mr Al-Megrahi” appears to be a very different proposition from tactfully abiding by a studied silence on the merits.

At the risk of being accused of pedantry, the self-effacing sentence “it is not for us to cast doubt” on such and such is qualitatively quite different from avowing “we do not doubt” that X is the case. On its most natural meaning the latter implies that the Government have formed a rational view of the case after due consideration of the relevant facts.

There will certainly have been no lack of opportunity to do so. The trial transcript, the trial and original appeal court judgements, and the court papers for the second, abandoned, appeal, are available for all to read and the Government’s copying arrangements will have facilitated easy access by cabinet members. It is difficult to believe that on such a vexed issue as Lockerbie some at least of the Scottish body politic have not made some effort to get to grips with the case details.

I would venture to claim that my two recent articles in Criminal Law and Justice Weekly (“Masking Justice with ‘Mercy’” and “Exploding Lockerbie”) which I attached with my August 1 e-mail, together offer a detailed, forensic, critique of the judgment warranting close attention. They will have been available to the Government for perusal for a whole month during the time that your response was in preparation. I must confess to some surprise therefore that your reply makes no reference whatsoever to either article. Criminal Law and Justice Weekly, formally known as Justice of the Peace, is one of England’s most venerable and distinguished law journals. The articles make serious and compelling points which surely deserve at the very least an acknowledgment.

For the purposes of this letter I shall assume that the phrase “do not doubt the safety of the conviction” was chosen with care and expresses a process of rational determination upon the facts. This provokes a number of questions, to which I would respectfully invite the Government’s response.

1.    Are you able to indicate whether the expression “Scottish Government do not doubt” means:

(a)     that all cabinet members individually studied the facts of the case, formed a view, and then came together to take a vote; or

(b)     that only certain members of the cabinet, for example the First Minister, the Minister of Justice and the Lord Advocate (assuming the latter was for present purposes a member of the cabinet), studied the case, and then formulated a summary for their colleagues with a recommendation which was then collectively accepted; or

(c)     that senior cabinet members dictated a view to their junior colleagues who then endorsed that view on command?

2.    In either case are you able to indicate

(a)     on what occasion the cabinet made their determination,

(b)     how much discussion there was on the factual issues,

(c)     whether any such discussion was minuted,

(d)     without indicating the views of individual ministers, the general nature of the points taken,

(e)     whether there was any conscientious dissent from expressing belief in the safety of the conviction,

(f)     whether any dissenting cabinet members have been directed by the First Minister to avoid airing their views publicly.

3.       If the answer to (1)(b) is in the affirmative the extent to which the First Minister, the Minister of Justice and the Lord Advocate have personally studied the evidence in the case.

For your information I am attaching the pdf of another article of mine, published in the current number of CL&JW, entitled “[A Postscript on Lockerbie].” (Regrettably there are two typographical errors which were introduced at a late stage through an electronic communication problem.) I would argue that the novel exposé of the narrow but devastating point focused on in the final section is one which, standing quite alone and apart from all the other problems with al-Megrahi’s conviction, might be met by some very serious soul-searching indeed on the part of judges and ministers alike and might make some men with a conscience very hesitant about declaring they have no doubts as to the safety of al-Megrahi’s conviction.

Your message to me carried the following pro forma warning:

“This e-mail (and any files or other attachments transmitted with it) is intended solely for the attention of the addressee(s). Unauthorised use, disclosure, storage, copying or distribution of any part of this e-mail is not permitted.” 

I am going to assume that this was a standard automatically generated appendage which was not intended to require the Government’s consent as a condition of quoting your message in any further excursus into journalism on which I might embark.

Yours faithfully

David Wolchover

A Postscript on Lockerbie

[This is the title of an article published in today's edition of the Criminal Law & Justice Weekly by David Wolchover, barrister and Head of Chambers Emeritus at 7 Bell Yard. It forms a postscript to Mr Wolchover's earlier Lockerbie articles which are referred to here and here. One section reads as follows:]

The Smoking Gun of Injustice: X-rays at Frankfurt

We have seen how the court’s reliance on a wildly improbable series of coincidences and a circularity of assumptions might have justified describing the trial as a merry farce had it not amounted to such an unfunny disgrace. But quite aside from all that, there was one very simple error of fact which alone irrevocably destroys the basic premise on which the Crown and the Judges relied, the premise that the suitcase containing the radio-cassette player bomb was flown from Malta on the morning of December 21, 1988 and was interlined at Frankfurt on to Pan Am feeder flight PA103A. Although the error might aptly be described as Lockerbie’s smoking gun of injustice it appears to have been almost entirely overlooked in the critical literature.

A discrepancy in the baggage tally points to the possibility that an item which may have come from Air Malta flight KM180 from Luqa may not actually have ended up on the feeder flight at all. But if it did, it would certainly have been screened by Frankfurt x-ray operator Kurt Maier.

The main article mentioned that giving evidence the US civil proceedings against Pan Am and their insurers in 1992 Maier stated that he would certainly have alerted his supervisor had he seen a radio or radio-cassette player on his screen. It also mentioned that he was not called as a witness at Zeist owing to serious illness. Unfortunately, what it did not also mention was that the judges, incredibly, were never referred to his 1992 evidence but only to the notes of his January 1989 interview (conducted in English) by US Federal Aviation Administration investigators (Zeist Production 1792; Zeist transcript, pp1866-7). The notes record that if “he found something unusual ... he would call his supervisor if necessary,” and that “he could say without question that there was no explosives” [sic] in any of the bags. But the notes also purport to attribute to him the odd notion that an external plug on an electrical device “clears his doubt about any explosive device.” The judges accordingly observed that Maier’s “of what he looked for does not suggest that he would necessarily have claimed to be able to detect explosives hidden in a radio cassette player.” Since this declaration evidently formed the basis of their finding that Maier must have let the bomb through it is clear that they misconceived the nature of his duty in the context of the “Toshiba warning.” That duty was not to “detect explosives” in a radio-cassette player but to look out for and report any radio-cassette player in luggage.

This would have become apparent from what he asserted in the 1992 civil trial. Closely cross-examined on his FAA interview, he insisted that if he had seen a radio-cassette player he would have called his supervisor for the very good reason that in view of the Toshiba warning he had specific instructions to do so (see transcript JA 1099-1100). The crucial point he was making was that in accordance with those instructions he would have called the supervisor regardless of his personal opinion of what made a radio-cassette player suspicious. That he would have followed his instructions is supported by the fact that he was described as a careful and serious-minded employee (Zeist transcript, p1848). He did not call his supervisor. Therefore none of the bags he screened contained a radio-cassette player. QED. It was and remains as simple as that.

Although there was said to be some doubt about the quality of the US court’s German-English translation, it is arguable that any uncertainty is more likely to have originated from the interview, which was conducted in English, a language Maier plainly found difficult else he would hardly have needed an interpreter for court. In contrast with the court video record the interview notes did not represent a verbatim minute and moreover, although the FAA investigator (Saunders) who was called at Zeist to produce the notes stressed that she and her colleague (Tiedge) had signed them, significantly she made no reference to Maier himself having done so.

Because the Zeist judges relied exclusively on the notes and remained blissfully unaware of his sworn courtroom testimony they were precluded from making a valid assessment of the totality of his evidence on the crucial point. It was an elementary and fundamental error of process that was completely avoidable, went to the heart of the allegation and proved catastrophic.

Exploding Lockerbie

[This is the title of a two-part article in the Criminal Law & Justice Weekly by David Wolchover, barrister and Head of Chambers Emeritus at 7 Bell Yard, London. It examines in detail the evidence led at Camp Zeist about the ingestion of the bomb that destroyed Pan Am 103 over Lockerbie. Part I of the article can be read here and Part II here. The conclusion of the two-part article reads as follows:]

It will have become apparent from the analysis of the evidence before the court offered here that wherever the bomb which destroyed Pan Am 103 was built the Samsonite hardshell bag in which it was packed could not have come from Luqa as an anonymous item of baggage on KM180, or from Frankfurt on PA103A. It should have been as “plain as a pikestaff” that it was smuggled into the system at Heathrow.

Why the Judges lost sight of the wood for the trees is not a matter which warrants conjecture. That they did so is beyond doubt. When asked by Lord MacLean to confirm that al-Megrahi’s Abdusamad passport was never used again after December 21, 1988, William Taylor QC said “We don’t know that”, to which Lord Maclean riposted “Yes I do” and gave the reference. The Judge got the acerbic reply he truly deserved: “Thank you. I am corrected. So your Lordship has asked me a question to which your Lordship already had the answer.” The application of a sight more judicial cleverness and rather less too cleverness by half might have delivered a truer verdict.

[An earlier Lockerbie article by Mr Wolchover "Masking justice with 'mercy'" can be accessed here.]