FBI offered me $4m: Lockerbie bomb witness

[1. This is the headline over a report published on The Scotsman website on this date in 2007. It reads as follows:]

A witness in the Lockerbie case has claimed he was offered $4 million (£2 million) by American investigators to lie to the trial judges.

Edwin Bollier, head of the Swiss company MEBO that was said to have manufactured the timer used to detonate the Pan Am bomb, claims he was offered the money by the FBI at its Washington HQ in exchange for making a statement that supported the main line of inquiry - that Libya was responsible for the bombing.

He has told Dr Hans Koechler, who was a UN observer during the trial of Abdelbaset Ali Mohmed al-Megrahi in the Netherlands, that he was offered a "new life" in the United States if he testified that the timer found in the plane wreckage had been supplied to Libya.

"I rejected this and said this could not possibly be the case," he said. He added that there was a "loud dispute" after he rejected the offer.

The claim follows news that the Maltese shopkeeper Tony Gauci, whose evidence led to Megrahi's conviction, was offered $2 million by the CIA.

[2. On this date in 2012 a letter from the late Jock Thomson QC headed Career prosecutors as law officers have destroyed criminal justice system was published in The Herald. It reads in part:]

History will show that the genesis of the destruction of our criminal justice system was the appointment of career prosecutors as law officers: beginning with (now) Dame Elish Angiolini QC as Solicitor General and continuing with a succession of senior members of Crown Office and Procurator Fiscal Service (COPFS) since who have become and will remain Lord Advocate and Solicitor General for the foreseeable future.

This has led to the unholy, unhealthy alliance of law officers and law makers: Kenny MacAskill and Frank Mulholland, in the same bed. There is no separation of powers. Constitutionally the system now is morally and mortally flawed.

The fall-out from Cadder led to the knee-jerk Cadder Reforms. Ms Angiolini's furore about lack of convictions in rape cases, many of which should never have been raised in the first place, led Mr MacAskill to appoint Lord Carloway to consider whether the law should be amended to abolish the need for corroboration. The current Lord Advocate wants to do away with the accused's right to silence and the logical follow-on from that will be to make the accused a compellable witness. Will the next inexorable draconian step be the replacement of the presumption of innocence with that of a presumption of guilt? It's beginning to look that way. And by that time there may be little or no Criminal Legal Aid.

Angiolini succeeds Boyd as Lord Advocate

[On this date in 2006 the Scottish Parliament approved the nomination of Elish Angiolini as Lord Advocate, in succession to Lord Boyd of Duncansby QC (Colin Boyd). What follows is excerpted from a report on the BBC News website:]

MSPs have approved the appointment of Elish Angiolini as Scotland's first female lord advocate.

Ms Angiolini was nominated as Scotland's new senior law officer by First Minister Jack McConnell after Colin Boyd's sudden resignation.

Her nomination was broadly welcomed by MSPs at Holyrood but the Scottish Conservatives raised concerns about judicial independence. (...)

Scottish National Party Holyrood group leader Nicola Sturgeon welcomed the appointment but questioned the post's dual role.

Tory Leader Annabel Goldie also voiced "real concerns" about the chief legal adviser to the Scottish Cabinet being the country's leading prosecutor.

She said: "There is a real and visible conflict of interest."

Ms Goldie proposed a commission to examine the "proper separation of powers, responsibilities and duties" in relation to the post.

The Scottish Tory leader also questioned whether Ms Angiolini had the "breadth of legal experience" for the job and said she opposed John Beckett QC as the new solicitor general, because he was a Labour member. (...)

She [Ms Angiolini] said her appointment [in 2001] as the first female solicitor general had been "a huge leap of faith".

"It has been a privilege over the past five years to serve along with Colin Boyd as lord advocate," she said."He is a man of great integrity and has been a quiet revolutionary in setting about the way in which the prosecution has gone about its business.

"It has transformed over the past five years but that transformation is something which is a work in progress."

Announcing his intention at a press conference in Edinburgh, Mr McConnell praised Ms Angiolini's performance as solicitor general.

"Five years on, I have no doubt whatever that the appointment of Elish Angiolini as solicitor general is one of the best decisions I have made as first minister of Scotland," he said.

"Our prosecution services today are admired, not ridiculed.

"Victims and witnesses see justice implemented in the system, not delays or chaos."

[On the occasion of the appointment of Ms Angiolini’s successor, Frank Mulholland, in 2011, I wrote the following:]

This appointment is not unexpected, but it is to be regretted. Virtually the whole of Frank Mulholland's career has been spent as a Crown Office civil servant. This is not, in my view, the right background for the incumbent of the office of Lord Advocate, one of whose functions has traditionally been to bring an outsider's perspective to the operations and policy-making of the department. Sir Humphrey Appleby was an outstanding civil servant of a particular kind, but his role was an entirely different one from that of Jim Hacker and no-one would have regarded it as appropriate that he should be translated from Permanent Secretary of the Department of Administrative Affairs to Minister (or, indeed, from Secretary of the Cabinet to Prime Minister).

The appointment by the previous Labour administration in Scotland of Elish Angiolini as Solicitor General and then as Lord Advocate was a mistake, both constitutionally and practically, as was her retention as Lord Advocate by the SNP minority government (though the political reasons for her re-appointment were understandable). It is sad that the new majority SNP Government has not taken the opportunity to return to the wholly desirable convention of appointing an advocate or solicitor from private practice to fill the office of Lord Advocate. The much-needed casting of a beady eye over the operations of the Crown Office is not to be expected from this appointee. This is deeply regrettable since such scrutiny is long overdue.

A travesty perpetrated by a credulous court

[What follows is excerpted from an article published on the website of Scottish lawyers’ magazine The Firm on this date in 2011:]

Claims given to selected media by the Crown Office that a retrial of acquitted Pan Am 103 co-accused Lhamin Khalifa Fhimah is the "top priority" of their double jeopardy unit have been dismissed as "public relations puffery" by Professor Robert Black QC, the architect of the unique Zeist trial of Fhimah and Abdelbaset Al Megrahi.

The newly appointed Lord Advocate, Frank Mulholland, has also briefed sections of the media about raising a prosecution against Libyan Leader Colonel Gadaffi, despite the fact that the entire Lockerbie trial arrangement was brokered under the auspices of the United Nations under an internationally agreed legal arrangement which did not include the possibility of proceedings against Gadaffi.

Professor Black, who earlier this year highlighted the legal errors contained in the former Lord Advocate, Elish Angiolini’s advice to the Scottish Government over the case has said that "the evidence does not exist" to try Fhimah.

"There will be no re-trial of Lhamin Fhimah or any trial of Colonel Gaddafi for the bombing of Pan Am 103," Professor Black said this morning.

"The Crown Office is perfectly well aware that the evidence simply does not exist to make a conviction a realistic prospect; and that the conviction of Abdelbaset Megrahi on the evidence led at Zeist was a travesty perpetrated by a credulous court which has long since been exposed, by the Scottish Criminal Cases Review Commission amongst many others."

In February this year Black and members of the Justice for Megrahi Committee said the "misinformation" promulgated by the Crown Office was "symptomatic of a culture of self interest where openness and accountability is seen as threatening that interest."

Call for Lord Advocate to step back from Lockerbie case

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

The lawyer who was the architect of the Lockerbie trial in a foreign country believes the Lord Advocate must excuse himself from deciding whether to mount criminal proceedings against those who led the investigation.

Professor Robert Black QC, a former law academic at Edinburgh University, said it was particularly important that Scotland's top prosecutor, Frank Mulholland QC, step aside (...)

Three years ago, the Justice for Megrahi group, which believes the Libyan convicted of the Lockerbie bombing was innocent, submitted nine allegations of criminality on the part of police, Crown officials and expert witnesses in the case.

A police report is expected to be submitted to the Crown Office in the summer, and it will then be for the Lord Advocate to decide whether to take further action.

Well-placed sources have indicated that at least some of the allegations appear to stand up to scrutiny, so Mr Mulholland, who as recently as the 26th anniversary of the bombing in December publicly defended the safety of the conviction, would face a difficult decision.

Prof Black said Mr Mulholland must avoid that scenario and step aside before the police report is submitted.

He added: "Given that any charges would be against police officers subject to direction by the Crown Office; forensic scientists instructed and called as witnesses by the Crown Office; and members of the Crown Office's prosecution team at the Lockerbie trial, there is an obvious conflict of interest involved in the current head of the Crown Office being the person to decide whether prosecutions should be commenced." (...)

A police spokesman said: "Police Scotland continue to progress live investigation and as such it would be inappropriate to comment further."

A spokesman for the Crown Office said: "The allegations made by Justice For Megrahi are being considered by Police Scotland in accordance with due process. It would be inappropriate to offer further comment at this stage."

Conflict of interest: a return to the charge

One week ago I posted on this blog an item headed Lockerbie, the Lord Advocate and conflict of interest. It contained the following paragraphs:

“The Lord Advocate is the head of the prosecution system in Scotland. All serious (solemn) cases are brought in his name and prosecuted by him or one of his deputes (or, in the sheriff court, by a procurator fiscal who is a member of his department, the Crown Office and Procurator Fiscal Service). In the investigation of crime, the police are legally obliged to obey any directions given by the Lord Advocate or on his behalf.

“Police Scotland are currently investigating serious allegations of criminal misconduct in the course of the Lockerbie criminal investigation, prosecution and trial. The allegations are directed against, amongst others, police officers, Crown Office personnel involved in the prosecution, and forensic scientists instructed and called as witnesses by the Crown Office. The current investigation is a rigorous and professional one. It is likely to be concluded later this year.

“Under the current law the investigators’ report will be submitted to the Lord Advocate. Even if that report reaches the conclusion that there are grounds for prosecution, it is for the Lord Advocate to decide whether any prosecutions should in fact be brought. He could decide not to proceed.”

Here are comments that the present Lord Advocate, Frank Mulholland QC, is reported to have made about the allegations of criminal misconduct that are the subject of the ongoing Police Scotland investigation and about the people who made them: “without foundation”; “defamatory”; “conspiracy theorists”; (The Times, 21 December 2012); “During the 26-year-long inquiry not one Crown Office investigator or prosecutor has raised a concern about the evidence in this case.” (The Times, 20 December 2014). Mr Mulholland has not challenged the accuracy of the remarks attributed to him in these reports in The Times.

It quite simply cannot be right in a civilised country which makes any claim to take the administration of justice seriously that the decision on whether criminal proceedings should be brought in a particular case should rest with a person who, or with a Department whose head, has already publicly expressed such views about that case.

As I wrote a week ago: “In these circumstances it is submitted that now, before Police Scotland’s report is ready for submission, the necessary steps should be taken to avoid the Lord Advocate finding himself in the embarrassing position regarding conflict of interest that the report’s landing on his desk would place him and the Crown Office in. The police report should rather be handed to, and the decision whether prosecutions ought to follow should be devolved to, an independent lawyer outwith the Crown Office. Our American cousins in analogous situations make use of a special prosecutor or independent counsel. This is one area in which we can learn from them. Why not start putting the mechanism in place now?”

The development of Tony Gauci’s statements

[Regarding the Lockerbie case, Frank Mulholland QC, the Lord Advocate, has recently stated: “During the 26-year-long inquiry not one Crown Office investigator or prosecutor has raised a concern about the evidence in this case.”  If this is so, then it is a truly shocking indictment of the Crown Office. The following section from Dr Kevin Bannon‘s PhD thesis, reproduced with his kind permission, demonstrates how grave the concerns should be about just one particular chapter of the evidence:]

The development of Tony Gauci’s statements from his first police interviews in September 1989 through to his testimony in court, reveal his recollections systematically developing in favour of the Crown narrative, in increasing contradiction of all his freshest recollections. This is transparently evident in the following compendium in which each subject of Gauci’s testimony in bold type is followed by actual or accepted facts summarised in italics, below which the essential statements are put chronologically:

1. Stature of the Purchaser:

The height and build of the purchaser. Al-Megrahi was 5’7” tall, average build.

1 September1989: ‘Six feet or more in height’ big chest, large head, well built.

26 September 1989: ‘around six feet or just under that in height’ and ‘broad built’.

11 July 2000 (Camp Zeist): ‘..below six feet’. ‘He wasn’t small. He was a normal stature’.

2. Purchase of clothing:

Slalom shirts. 2 Slalom shirts found at Lockerbie, one grey and one blue & white.

1 September 1989: No mention in statements of any shirts sold.

30 January 1990: ‘That man didn’t buy any shirts for sure’…‘I am sure I did not sell him a shirt’.

10 September 1990: I now remember that the man who bought the clothing also bought a beige ‘Slalom’ shirt and a blue and white striped shirt.’

11 July 2000 (Camp Zeist: asked ‘How many shirts did the Libyan buy?’): ‘Two’ shirts ‘Slalom, something Slalom’ one ‘blue checked’ and the other ‘greenish’. ‘It’s greenish and greyish. It’s more greyish…’

Pyjamas. 1 pair, striped, found at Lockerbie.

1 September 1989: ‘3 pair pyjamas’ (un-described).

11 July 2000: Did he buy any pairs of pyjamas? ‘Yes he did. He bought two pairs, striped’.

Cardigans. Fragments of 2 Cardigans found, one black and one brown.

1 September 1989: 1 cardigan (listed). Black and red colour.

11 July 2000: ‘..two pullovers.’ ‘They were cardigans.’ ‘One was blue, the other was a brownish colour’.

‘Babygro’ romper suit. Crash-site find had lamb’s head motif.

1 September 1989: Gauci said that the Babygro had a sheep’s face on the front.

13 September 1989: Gauci reiterated that the Babygro had a sheep’s head, even when shown the control sample with a lamb’s head, declaring that the sheep’s head design had been discontinued since he received it. Police subsequently established that the Babygro manufacturer had never produced a sheep’s head design.

4 October 1989: Gauci initially declared he was not sure about the sheep’s head design. Then said he was "fairly certain" that the Babygro sold to the purchaser had a lamb motif.

Payments for items sold. Gauci’s uncorroborated figures (in Maltese Pounds):

1 September 1989: Sale was £76.50, purchaser paid in £10 notes and received £4 change. Gauci later said the purchaser paid a total of £56 in cash.

19 September 1989: Second cardigan recollection; raises the sale to £88.

10 September 1990: Sale of 2 shirts raises Gauci’s recollected bill to £97 or £98.50.

11 July 2000: Purchaser gave him £80 for a total bill of £77.

3. Time and circumstances of purchase:

Rain. Meteorological evidence: 90% probability of no rain in Sliema on December 7.

1 September1989: ‘..it was raining’.

21 February 1990: ‘it had almost stopped raining, and it was just drops coming down’.

10 September 1990: ‘very little rain on the ground, no running water, just damp’.

11 July 2000, (Camp Zeist): ‘..it started dripping. Not very -- it was not raining heavily. It was simply -- it was simply dripping’.

11 July 2000: ‘It wasn't raining. It wasn't raining. It was just drizzling’.

Christmas lights/decorations. Decorations up and switched on 6 December 1988.

19 September 1989: ‘The decorations were not up when the man bought the clothes’.

10 September 1990: ‘There were no Christmas decorations up, as I have already said...’

11 July, 2000 (Camp Zeist): ‘..yes, there were Christmas lights. They were on already. I’m sure.

Date of purchase. Only December 7 fitted with al-Megrahi’s movements.

19 September 1989: ‘…I believe it…was at the end of November’.

8 October 1999 Precognition of Tony Gauci: ‘I remember it was the 29th of the month. I think it was November’. (Gauci recalled the date because he’d had a row with his girlfriend on that day).

11 July 2000 (Camp Zeist) : It must have been about a fortnight before Christmas. I don’t know whether it was a week or two weeks before Christmas’.

Second visit of Libyan customer. Al-Megrahi was not in Malta on September, 25 1989.

26 Sept 1989: Gauci said that the Libyan customer had returned to his shop the previous day (September 25) to buy dresses for a four-year-old child.

2 October 1989: (DCI Bell’s report of statement) Gauci said he was only 50% sure that the same Libyan had returned to the shop.

4 November 1991: Gauci said that the man who bought children’s dresses ‘really looked like’ [the purchaser]. Gauci seemed confused about the date of the visit.

18 March 1999 / 25 August 1999 (Precognition of Tony Gauci). Noted in DCI Bell’s words: ‘the man who bought the dresses looked like the purchaser but it was not the same person’.

Even minor details of Gauci’s testimony, including the collar sizes of shirts and the size of a jacket sold to the Libyan, drift consistently in favour of the Crown narrative.

It was not a secret that well before the Camp Zeist identification parade, Gauci had been exposed to newspaper articles featuring pictures of al-Megrahi including speculation about him as a suspect. In later SCCRC interviews, Gauci firstly admitted seeing the articles but could not recall specifics about them. Later he said that he could not recall seeing the articles at all, and later still he confirmed that he had not seen them - a transformation in the same, stepped fashion as most of his ‘recollections’ which at the very least, confirm his ineptitude as a witness.

Therefore, it is not merely the case (as has often been stated) that Gauci’s evidence was contradictory, but that in every aspect, it changed in favour of the Crown narrative, in some instances quite drastically. Gauci’s original, freshest recollections about the appearance of the Libyan purchaser and the time of his visit, would have, and should have, categorically eliminated al-Megrahi from suspicion.

Gauci’s testimony, the centrepiece of the case against al-Megrahi and, by implication, the principal Libyan connection to the crime, simply has no integrity whatsoever - nevertheless he was given a substantial financial reward for his latter evidence. These discrepancies render the entire case against al-Megrahi invalid. Of course this means that the considerable body of Camp Zeist testimony implicating al-Megrahi, such as the testimony of Majid Giaka, is false.