Lockerbie: Scene of the crime

[This is the headline over the fourth in Dr Morag Kerr’s series of articles for iScot magazine. It is to be found at pages 19 to 23 of the March 2016 issue. The following are excerpts:]

When Pan Am 103, Maid of the Seas, exploded over Lockerbie and crashed down on the Dumfriesshire market town, resulting in the biggest terrorist atrocity in the UK to date, it sparked a mystery which has been the centre of controversy for more than quarter of a century.

One thing is known, when the Boeing 747 began its journey from London on 21 December 1988 it was loaded from empty at Heathrow airport.  So, inevitably, the suitcase containing the bomb was put on board at Heathrow.  However, like almost everything else in this story it wasn’t quite that simple.  

While the bulk of the luggage had indeed been security checked in London, one batch was not.  Pan Am 103 had a feeder flight from Frankfurt that connected with the transatlantic flight at Heathrow, and it was carrying about 45 items of luggage that had been screened in Germany.  As pieces of blast-damaged aluminium were brought in from the fields over the Christmas weekend of 1988, it became clear that the explosion had been in the container holding this transfer luggage.

The reaction of the investigators seems to have been relief.  London’s flagship international airport was not responsible for the security breach that had allowed a bomb to destroy an aircraft and kill 270 people.  The news was headlined in the Times on Hogmanay.  The paper was confused about the change of aircraft at Heathrow, but the message was clear.  This was Germany’s responsibility.

There was more.  The German police themselves had reason to take the same view.  Only two months earlier they had arrested members of a Palestinian terrorist group, the PFLP-GC, who were found with improvised explosive devices designed to attack aircraft in flight. Most of these men had been released without charge, and it was feared they had regrouped and completed their mission.  Thus, by the end of the New Year holiday weekend, the investigation was on course.  The bomb had flown in on the feeder flight and the scene of the crime was Frankfurt.

Remarkably, this mindset remained unchanged as witness statements from Heathrow were collected and a rather different picture began to emerge.  On 31st December the baggage handler who had dealt with the transfer luggage (Amarjit Sidhu) stated that a number of suitcases were already in the container before he added the items from the Frankfurt flight.  On 3rd January the baggage handler who had dealt with the container earlier in the afternoon (John Bedford) confirmed this, and told a remarkable story.  He himself had loaded only a few cases along the back of the container, hinge-down-handle-up, before going for a tea break.  On his return he noticed two additional suitcases lying flat in front of these cases.  He said the x-ray operator Sulkash Kamboj told him he had loaded them in Bedford’s absence, but in his own statements Kamboj denied any knowledge of this.

On 9th January Bedford told the police that he remembered one of the extra cases being a brown Samsonite hardshell, and the other much the same.  It was already obvious that the explosion had occurred low down in the front left corner of the container, and by mid-January the forensic scientists were picking pieces of brown hardshell out of various other suitcases and finding larger pieces of the same case severely blast-damaged.  They had identified the bomb suitcase – a brown Samsonite hardshell.

The reaction of the investigators to this accumulation of information was extraordinary.  They ignored it.  While it was occasionally acknowledged that a Heathrow loading hadn’t been entirely ruled out, the investigation was going full steam ahead for Frankfurt.  Nobody, in January 1989 or later, made the slightest effort to figure out if the case Bedford described was legitimate passenger baggage.  Nobody attempted to match it to any of the luggage recovered on the ground. (...)

The judges declared that since the defence hadn’t proved the bomb was in the case Bedford saw, it could be disregarded, and chose to favour the Frankfurt route despite the missing data from that airport, the multiple unidentified items of transfer luggage, and the complete absence of an unaccompanied suitcase on Malta.

Nevertheless, huge questions remained unanswered.  What did Bedford see, if it wasn’t the bomb?  Could it have been legitimate passenger baggage?  Could it be matched to anything found on the ground?  Frustratingly, the information to allow this to be assessed wasn’t presented to the court.

To cut a long story short, the information was and is available, and it was finally analysed in 2012-13.  The key to the Crown’s abandoning of the theory that the luggage already in the container hadn’t been rearranged is the realisation that if the case Bedford saw had been under the bomb suitcase as the original investigation believed, it would inevitably have been blown to bits.  The search across Roxburghshire and beyond was thorough, and pieces of blast-damaged luggage were high priority.  Multiple pieces of the bomb suitcase and those surrounding it were recovered.  It beggars belief that nothing would have been found of the case that had been under the bomb.  But nothing was.

Set against this damning finding, all the prosecution had was the subjective opinions of the forensic scientists that the floor of the container would have shown “pitting and sooting” if the bomb had been in the bottom-level case.  However, that was shaky, as it had never been tested by experiment.  (Last year the experiment was finally done by an independent forensic institute, and sure enough, even with the bomb suitcase on the bottom, no pitting or sooting was seen.) (...)

Three baggage handlers who saw the container before the Frankfurt luggage was added were asked to reconstruct the loading as they remembered it.  All needed seven suitcases to make it look right, not six.  There was an extra, undocumented case in that container that afternoon, and it was the one lying to the front left, the one virtually bang on the position of the subsequent explosion, the one John Bedford described as a brown Samsonite hardshell.

Further evidence cements the conclusion that the bomb was in the suitcase on the bottom layer.  Although “pitting and sooting” were absent from the container floor itself, they were present on the section of the airframe under the floor, demonstrating that it was not protected by another intervening suitcase.  Examination of the two suitcases behind the explosion, which were loaded upright, shows the most severe damage right down at floor level, not halfway up the sides.  This really is “the picture that speaks a thousand words”.

The Lockerbie bombing was a crime that happened at Heathrow airport, at about half past four in the afternoon – not on Malta at nine in the morning.  At 4.30 pm on 21st December 1988 Abdelbaset al-Megrahi was verifiably in Tripoli.

Where does that leave the Lockerbie investigation, in 2016?  There are two Police Scotland investigations currently open – one operating on the assumption that the bomb was somehow smuggled on to KM180 on Malta and attempting to identify Megrahi’s alleged “accomplices”, the other looking at matters from an entirely different perspective.  Next month’s article will focus on the ongoing search for a resolution.

Lockerbie and the search for truth

[This is the headline over an article by Dr Morag Kerr just published in the first issue of the new online magazine iScot (pages 11 to 18). The following are excerpts. The original online version contains helpful photographs and illustrations:]

The summer of the independence campaign saw a few important news items relegated to minor footnotes, not least in June when the application for a new appeal against the conviction of Abdelbaset al-Megrahi for the Lockerbie bombing was finally submitted to the Scottish Criminal Cases Review Commission. 

The application has been the culmination of a huge amount of work not just by lawyers but by many people interested in the case and it concentrates on four main aspects.

Firstly, the contention that the identification of Megrahi as the man who bought the clothes packed in the suitcase with the bomb was fatally flawed. 

This point was the centrepiece of the previous appeal which was abandoned when Megrahi was granted compassionate release. Although the trial judges described the identification as “not absolute” they controversially decided he had been the purchaser anyway. Information acquired by the SCCRC in 2006 however showed that the clothes had been bought on a day when there was no evidence he had been anywhere near the shop in question. 

Secondly, the application highlights an entirely new analysis of theforensic evidence, never beforepresented in court. The new evidence shows the suitcase containing the bomb was one which was seen in the baggage container at Heathrow airport an hour before the connecting flight from Frankfurt landed. This utterly destroys the Crown case, which relied on the bomb suitcase having been transferred from the Frankfurt flight. 

Then there is the evidence relating to the metallurgical composition of the fragment of printed circuit board designated PT/35b. This fragment was believed to be part of the timing mechanism of the bomb, and the Crown alleged that it came from a digital timer of a type made exclusively for the Libyan military, of which only 20 had ever been delivered. 

However, a crucial discrepancy in the analysis of the metallic coating on the circuitry demonstrates that PT/35b was not made by the manufacturer who made all the items supplied to Libya. 

And lastly, the sheer amount of evidence not disclosed to the defence which would have been very helpful to the accused and in some cases exculpatory. This covers not just the infamous “secret intelligence report” which David Miliband slapped a Public Interest Immunity Certificate on in 2008, but a number of other documents including one which would have allowed the defence to understand the problem with the metallurgical analysis of the PCB fragment at the time of the original trial. 

This case has the distinction of being the first in Scotland in which published books have formed part of an application. Selected chapters from John Ashton’s 2012 (...) Megrahi: You are my Jury, have been submitted to the SCCRC in support, as well as the entirety of my own 2013 book, Adequately Explained by Stupidity? 

The initial draft of the application was prepared by Robert Black, emeritus professor of Scots Law at the University of Edinburgh, who has a long standing involvement in the case and has believed for many years that the conviction was a miscarriage of justice. In a highly unusual move it is being submitted in the names of about two dozen relatives of Lockerbie victims, in addition to several close relatives of Megrahi himself. Aamer Anwar, the campaigning human rights solicitor and well-known advocate of independence is acting on their behalf. 

Prof Black commented that any one of the four points enumerated above, if upheld, would be sufficient to have the conviction overturned. He also notes that the second point, the one relating to the arrangement of the luggage in the baggage container, is in a different category from the others. 

To have a conviction overturned it is sufficient to show that a miscarriage of justice may have occurred. That’s not quite the same as proving that the accused didn’t do it, as some exonerated defendants have found to their cost. In England at least, in order to be awarded compensation for wrongful imprisonment the appellant must be shown to be “clearly innocent”. 

The suitcase positioning fulfills that criterion by showing the crime could have happened at Heathrow airport, in the afternoon, at a time when Megrahi was verifiably in Tripoli and not at Malta's Luqa airport in the morning when he was catching his flight home. It provides him with a complete alibi. (...)

If this point of appeal is upheld, the Crown Office will be in an invidious position. The charade of the Malta crime-scene will no longer be tenable. The investigation will have been shown to have been off the rails from its earliest weeks, and to have pursued a red herring down a blind alley rather than seeking the real terrorists in London that afternoon. Undoubtedly some faces will be very red. 

However, there’s a long way to go before that point is reached. First, the SCCRC have to agree that there are indeed grounds forappeal contained within the submission it has received. Not only that, a new hurdle has to be cleared which didn’t exist at the time the previous leave to appeal was granted in 2007. 

As part of the legislation arising out of the Cadder case (relating to the right of a suspect to have a lawyer present during questioning) a provision was introduced into Scots Law requiring not only that there should be grounds for believing that a conviction might amount to a miscarriage of justice, but that there must be compelling reasons to override the assumed desirability of having “certainty and finality” at the end of a legal process.

While it’s true the legal system had no desire to be swamped by hordes of lowlifes appealling petty theft convictions because they had been denied access to a lawyer when  they were first questioned by police, this is a big deal with far wider ramifications. As it now stands, Scots Law can declare that it doesn’t matter if there are compelling grounds for believing you were wrongly convicted of murder, because it’s more important that a line should be drawn. And pity help you if you’re on the wrong side of that line. 

Not only does the SCCRC itself have to be satisfied that “certainty and finality” should be overruled, the appeal judges themselves have the option of refusing to hear the appeal if they disagree with the SCCRC on this point. 

The Scottish government has repeatedly declared that the only place to resolve the ongoing running sore of the doubts over the Lockerbie conviction is in the courts, by way of another appeal. Ministers have intimated their unconditional support for such a move, virtually challenging the bereaved relatives who harbour these doubts to “bring it on!” Well, crunch time is approaching, albeit at the speed of continental drift. Will the government get its wish to have this all cleared up in open court, or will someone, somewhere, wield the dreaded “certainty and finality” ban-hammer over the process? 

It’s now five months since the application was submitted to the SCCRC. At some point the deliberations have to end and a report will emerge. How that is received will be a huge test of our criminal justice system, and incidentally of our new justice secretary.

Lockerbie: Bomb trigger or clever fake?

[This is the headline over part three of Dr Morag Kerr’s series of Lockerbie articles. It appears at pages 15 to 19 of the February 2016 edition of iScot magazine. The previous two instalments are referred to on this blog here and here. The February instalment reads in part:]

(...) Once the first pieces of blast-damaged baggage container were brought in on Christmas Eve, the police knew they were dealing with mass murder.  Every piece of debris recovered, down to the smallest rag or scrap of suitcase, was logged with the precise location where it had been found.

The item designated PI/995, which became a crucial clue and a nexus for numerous conspiracy theories, was logged as being picked up near Newcastleton, twenty miles east of Lockerbie, on 13th January 1989.  It proved to be a scrap of shirt collar, burned by close proximity to the explosion.  Much has been written about the provenance of this item, and in particular the scanty and problematic documentation of its most significant feature – a 1 cm square fragment of fibreglass printed circuit board found embedded in the cloth and dubbed PT/35b.

This fragment is at the centre of a confused and confusing mess of renumbered pages, inconsistent dates and general muddle which have led many people to speculate that it was actually a retrospective plant.  These suspicions are heightened by the absence of any record during 1989 of a serious forensic investigation of the item, although the RARDE scientists were obsessing over other pieces of circuit board at that time.  PT/35b apparently sat in a side-room, unremarked, despite a photograph dated May 1989 in which it seems to sit there shouting “look at me, I’m a freaking great CLUE!”

However, detailed examination of the suspect documentation doesn’t categorically prove that any of it was inserted retrospectively.  The examination notes in question, written by forensic scientist Dr Thomas Hayes, are so scrappy, disorganised and unprofessional that it’s impossible to prove anything either way.  While pages 50 and 51 look very much like interpolations (PI/995 is described on page 51), there are many other equally obvious interpolations – it seems to have been the way he worked.  Not only that, the nature of the documentation is such that if he had wanted to add the reference to PT/35b retrospectively he could simply have substituted a single re-written page and nobody would have been any the wiser.

One thing seems reasonably certain.  The scrap of collar really did fall out of the sky, with the shirt it was part of being extremely close to the explosion.  The careful logging of the recovered debris shows four separate parts of that same shirt recovered from widely separated locations which form an almost perfect straight-line continuation of the “southern debris trail”.  While PI/995 itself was found in a field, PK/339 was recovered high on a steep hillside in the depths of the Kielder Forest.  One piece was found fifty miles from Lockerbie, near Otterburn in Northumberland.  This all fits perfectly with the known distribution of the falling, wind-swept debris, and the effort that would have been required to fake it is mind-boggling.

Was PT/35b, the infamous printed circuit board fragment, actually lodged in the cloth at that time?  It’s impossible to say, but at the moment it has not been proved that it wasn’t.  What has been proved is something altogether different, something entirely unsuspected during the years when the defence teams were poring over the forensic notes and wondering if certain pages might have been added at a later date.

The serious attempt to find out what the fragment was began in earnest after it was finally handed over to the Scottish detectives in January 1990.  Physical and chemical analysis was carried out at the University of Strathclyde.  Policemen patiently telephoned and visited manufacturers of electronic components and suppliers of raw materials.  Nothing earth-shattering transpired.  The raw materials were unremarkable, used in millions of gadgets and gizmos worldwide.  A detailed report dated September 1990 catalogues the effort, and notes one particular feature that seemed anomalous.  Printed circuit boards have a coating on the circuitry, known as ‘tinning’, applied to make the components easier to solder.  In mass manufacturing this coating is almost always a tin/lead alloy, however PT/35b had a coating of pure tin, applied in such a way as to suggest this had been done by a method known as electroless plating, used by amateurs making only a few boards as a hobby.

This didn’t help though, and PT/35b’s origins remained elusive.  Finally, in June 1990, the Scottish police allowed the FBI to become involved.  Success was almost immediate, with no need for further analysis.  With the help of a CIA agent, the fragment was matched visually to a circuit board from an electronic timer known as an MST-13 made by a Swiss firm called MEBO.  Inquiries in Switzerland revealed that only twenty of these timers had been produced, as a special order for the Libyan armed forces.

This was the main breakthrough of the investigation, the cause of the switch in direction from Iran and the PFLP-GC to Gaddafi’s Libya as the prime suspects.  It also provided the perfect answer to a conundrum that had plagued the investigators since early 1989.  How had one of the PFLP-GC’s devices travelled on three flights before blowing up, when the triggers used by that group were altitude-sensitive?  The MEBO devices were count-down timers capable of being set to go off days in advance, irrespective of altitude.

The Lockerbie investigators set off to hunt Libyans, and apparently never looked back.

Belatedly, the forensic scientists at RARDE did what they should have done in 1989, and carried out their own physical and chemical analysis of the fragment.  These tests were overseen by Allen Feraday, and his notes dated 1st August 1991 record the same findings as the tests done in Scotland the previous year.  The coating on the circuitry was pure tin.

There was a complication, though.  The investigators by now had samples of the MEBO-produced boards for comparison, and Mr. Feraday analysed these too.  They were different.  They had the usual alloy coating seen on mass-manufactured products.  His notes reveal some puzzlement.  He recorded some tentative suggestions, but the conundrum was never resolved.  The visual match with the MEBO boards was perfect, right down to an oddity in the tracking caused by the Letraset of the template not having been cut quite flush.  The metallurgy discrepancy was put to one side.

The matching of PT/35b to the unique batch of timers supplied to Libya was central to the prosecution of Megrahi and Fhimah in 2000-01.  With the timer off the table, proof that Lockerbie was a Libyan operation would have been absent, and the prosecution would have been in all sorts of trouble.  So how was the metallurgy discrepancy dealt with in court?

It wasn’t.  Mr. Feraday’s original notes weren’t disclosed to the defence, and the matter was covered by having him read out the relevant section of his fair-copy report written some months later.  In that, there was no mention of any discrepancy.  The report read “... it has been conclusively established that the fragment materials and tracking pattern are similar in all respects to the area around the connection pad for the output relay of the ‘MST-13' timer.”

Similar in all respects?  No, it wasn’t.

None of the independent scientists who had carried out testing on the fragment were called to give evidence.  The matter wasn’t brought up with the production manager from the company which had made the boards for the MST-13 timers.  The fact that the composition of the coating showed that PT/35b had been made by a completely different process from the MEBO instruments was never highlighted.

Further investigation carried out by Megrahi’s defence team in preparation for his second appeal revealed that the company which made the PCBs for the MST-13 timers had never used an electroless plating technique.  All the instruments supplied to Libya by MEBO had the usual lead-alloy coating on the circuitry.

PT/35b did not come from a timer sold to the Libyan armed forces, as claimed by the prosecution.

In that case, what was it?  Nobody knows.  The visual match between the fragment and the boards from the MEBO timers is striking, indicating that they all originated from the same template. (...)

Who made it, and why?  Did it fall out of the sky that December night, or was it somehow added to the rest of the debris recovered from the shirt collar at a later date, its dodgy provenance concealed behind the smokescreen of the disorganised forensics notes?  If we knew any of that, we might be a lot closer to solving the mystery of the Lockerbie bombing, still impenetrable after more than a quarter of a century.

The Malta connection

[The January 2016 issue of the excellent iScot magazine, which is in newsagents today, contains an article entitled “Lockerbie: the mystery shopper”, the second in a series by Dr Morag Kerr, the first of which is referred to here. The second instalment deals with the evidence from Malta that put a Libyan into the frame. It reads in part:]

A pair of men’s cheap slacks recovered from the wreckage of Pan Am 103 (...) were not only traced to the manufacturer but to the shop that sold them 2,519 miles from Lockerbie

The trousers were among the debris from Pan Am flight 103 picked up around Lockerbie in early 1989, severely blast-damaged and believed to have been packed in the suitcase with the bomb.  It took months to track “Yorkie Clothing” to an industrial estate on Malta, but once there, the firm’s stock records were a goldmine.  The size, the material and a serial number identified the trousers as having been supplied to a small local retailer on 18th November 1988.  

The shop, “Mary’s House”, was only three miles from Malta airport where the investigators believed the bomb had been smuggled on board a flight to Frankfurt.

Detectives visited the shop on 1st September 1989.  Incredibly, the proprietor Tony Gauci remembered selling the slacks to a customer.  Not only that, he listed other items sold in the same transaction, items which also corresponded to clothing found blast-damaged at Lockerbie.

Tony was a men’s outfitter, and he mainly remembered the customer’s body shape and size.  He recalled the face less well, but construction of a photofit was arranged, and he worked with an artist to produce a sketch drawing.  A local suspect was suggested by a Maltese policeman and Tony was shown his first photospread, a card with a number of photographs including one of the suspect.  He didn’t pick anyone out, so they tried again.  And again.  Over several months he was shown dozens of photographs more or less resembling his description of the customer, but he never made a confident identification.

This itself is problematic. Repeated viewings of photospreads, and the construction of photofits and artist’s impressions, are known to erode a witness’s original memory and decrease the accuracy of subsequent identifications.  There were other problems too.

The pictures were simple mug-shots, with no clue about height or build.  Tony said the man was dark-skinned, but nobody asked him how dark, or if the man was actually black.  Tony consistently put the customer at about fifty years old, but most of the pictures were of much younger men.  When he picked out a couple as “resembling” the purchaser, he also said they were “too young”.

A year passed, and it began to look as if the Gauci lead was going nowhere. Then, in late 1990, the focus of the investigation shifted from the Syrian-based PFLP-GC to Muammar Gaddafi’s Libya.  In January 1991 an FBI agent provided the Scottish investigators with names of known or suspected Libyan agents plus a couple of photos of one of them – Abdelbaset al-Megrahi.

One of the al-Megrahi photos was incorporated into yet another photospread.  Once again Tony rejected all the pictures as “too young”, but this time the detectives didn’t leave it at that and asked him to look again and he finally indicated Megrahi’s picture.  He merely stated that it “resembles [the customer] a lot”, then qualified that by remarking that the resemblance wasn’t as close as another photo he had been shown.  However, this was enough for the detectives to treat it as a positive identification of a suspect as the clothes purchaser. (...)

Mr Gauci never explicitly stated that Megrahi was his customer, not then and not when he came face to face with him eight years later at Camp Zeist.  Even at the formal identity parade he said “not the man I saw in my shop, but he resembles him a lot.”  

And Megrahi wasn’t the only person Tony thought ‘resembled’ the purchaser.  For a time he was enamoured of a picture of the Palestinian terrorist Abu Talb, an early police suspect.  Twice he told the police he’d seen the man again in Malta – once in a bar, and once actually in his shop.  On neither occasion is it at all likely he saw either Megrahi or Abu Talb.

None of this appeared to bother the police.  

The other major issue was the date of the purchase.  Obviously this must have been between 18th November and 20th December.  Mr Gauci said it was evening, midweek, and he was alone in the shop because his brother Paul was watching football on television.  It was before the Christmas lights were erected, and it was raining.

After checking details of televised football matches the date was narrowed down to either 23 November or 7 December.  Objective analysis clearly comes down in favour of the earlier day with the later one more of an outside possibility, but after it was discovered that Megrahi had visited Malta on 7 December and hadn’t been near the place on 23 November, all the stops were pulled out to promote the December date.

It’s difficult to believe the judges bought into this narrative, but they did.  They decided the December date was the correct one, despite the presence of Christmas lights and the absence of rain, and on that basis declared that Megrahi must have been the man who bought the clothes.

They were helped by Mr Gauci’s memory, which tended to shift towards whatever the detectives seemed to want him to remember.  By the time of the trial he had changed his mind about the customer’s height, build, age, skin colour, the extent of the rain and the presence of the Christmas lights, always to favour the prosecution case. (...)

Within days of the Gauci/Mary’s House connection being discovered the US authorities were keen to offer these crucial witnesses “unlimited money” for their evidence.  A sum of $10,000 could be made available immediately.  The Scottish investigators demurred, knowing this could cause serious difficulties for a prosecution under Scots law.  As a result the brothers didn’t receive any money until after the case was over, but they were well aware that a reward of $4 million had been publicly advertised for information against Megrahi and his co-accused Fhimah.

In the end, after the trial ended, Tony received $2 million and Paul $1 million.  Paul, who didn’t give evidence in court, was rewarded for “maintaining the resolve of his brother.”

When the Scottish Criminal Cases Review Commission issued its 2007 report, finding six grounds for believing that Megrahi’s conviction might have been a miscarriage of justice, all six related directly or indirectly to the identification evidence.  Most damningly, the Commission found that there was no basis in evidence for the trial court’s finding that the clothes had been purchased on 7th December – the hook that supported the entire daisy-chain of circular reasoning.

The subsequent appeal was widely expected to succeed, until it was abandoned by Megrahi when he returned to Libya in 2009.  In spite of this, investigation of the case has continued.  While the Crown Office insists it is exploring the possibility of charging others they allege acted as Megrahi’s accomplices, experts connected to his defence team have been otherwise engaged.

Non-disclosure of evidence by the Crown was a perennial problem throughout the case and repeated legal challenges prompted a constant trickle of new material.  Crucial documents that emerged in the days before the appeal was withdrawn opened up new avenues of inquiry and work continued.  In a parallel effort, a group of interested amateurs re-examined evidence that had been available for some time.

As we enter the 28th year of the Lockerbie investigation we know more than ever about how the atrocity was carried out, but at the same time deeper mysteries have emerged.

Lockerbie: the investigation remains live

[This is the headline over the fifth and final instalment of Dr Morag Kerr’s series of articles on the Lockerbie case. It appears in the April edition of iScot magazine and reads in part:]

Not even those who believed Abdelbaset al-Megrahi was guilty of the Lockerbie bombing ever imagined he acted alone.  This was always understood to have been an act of state-sponsored terrorism, and the official line was that Colonel Muammar Gaddafi had ordered the attack in revenge for the US bombing of Tripoli and Benghazi two years earlier in 1986.  Megrahi was merely the pawn who had been caught.  However, the acquittal of his co-accused Lamin Fhimah, who had originally been proposed as the man who put the bomb on the plane, left the identity of the other conspirators entirely up in the air.

Recognising this, the Lockerbie investigation remained live even after Megrahi’s conviction.  Initially it was largely a paper exercise, and the search for his supposed accomplices was seldom mentioned before August 2009, when he was released on compassionate grounds.  Instead the debate centred around whether Megrahi himself had been wrongly convicted, with the SCCRC report of 2007 enumerating no less than six grounds on which they believed a miscarriage of justice might have occurred.

Megrahi’s abandoning of the resulting appeal a few days before his release is mired in controversy.  On the face of it, the timing strongly implies some sort of quid pro quo.  His advocate Maggie Scott stated straight out that her client had been forced to give up the appeal as a condition of being allowed to return to Libya, but Kenny MacAskill, Justice Secretary at the time, has always denied putting pressure on Megrahi.

Following Megrahi’s return to Libya the Crown Office announced that it was pursuing fresh inquiries into the circumstances of the bombing, with a team of detectives assigned to the case and forensic evidence being reviewed.  Initially this was assumed to be a new, open-minded investigation prompted by the very real doubts highlighted by the SCCRC.  However, it soon became clear that it was anything but.  Despite Megrahi’s continuing protestations of innocence and the SCCRC’s findings remaining untested in court, the Crown Office decided to treat his withdrawal of appeal proceedings as a de facto admission of guilt.  There was to be no question of reconsidering the case against Megrahi.  The new investigation was focussed, exclusively, on identifying his presumed accomplices.

Initially the Gaddafi regime provided at least token co-operation, but little progress was made in the first two years.  In late 2011 the fall of Gaddafi  provided an entirely new playing field, with the Libyan rebels anxious to curry favour with the western powers, and in particular to lay the blame for every evil deed of the past forty years firmly at Gaddafi’s feet.  Nevertheless, this again amounted to very little.  The only relevant document found in the aftermath of Gaddafi’s overthrow was a letter from Megrahi to a Libyan official, in which he protested his innocence and asked for help to clear his name.  Several renegade Gaddafi-era officials anxious to reposition themselves in the new order advertised that they had evidence that Gaddafi had personally ordered the bombing of Pan Am flight 103, but this “evidence” turned out to be no more than a declaration that Megrahi wouldn’t have dared to do such a thing without an express order from Gaddafi, and pointing out the well-known fact that Gaddafi had paid for Megrahi’s legal representation and supported him while he was in prison.  The Crown Office issued periodic press releases emphasising their commitment to identifying the “others” with whom Megrahi had supposedly acted, but details of any actual progress were scanty to nonexistent.

Meanwhile those campaigning for Megrahi’s conviction to be reviewed were also active.  Members of the committee of Justice for Megrahi were concerned that not only were there serious grounds for believing the conviction to be a miscarriage of justice, but that the original inquiry and court proceedings might well have been tainted by misconduct.  After considerable discussion and soul-searching it was decided to lay these suspicions before the relevant authorities.

Formal allegations of criminality were drawn up against a number of individuals involved in both the 1988-92 police investigation and the 2000-01 court proceedings, eventually amounting to nine allegations in total supported by a 63-page dossier of evidence and legal argument.  Given that these allegations involved members of the Dumfries and Galloway police force and Crown Office personnel, it was difficult to know to whom the dossier should be submitted.  Accused bodies can’t themselves investigate the accusations against them – can they?  A letter was sent to Kenny MacAskill asking, in confidence, how Justice for Megrahi should proceed.

The reply was that the allegations should be submitted to the Dumfries and Galloway constabulary.  While JFM was unhappy with this instruction there was no option but to comply, and the dossier was sent to the then Chief Constable of the D&G, Patrick Shearer.  The reaction from the Crown Office was even more disconcerting.  Even before the detailed allegations had been submitted the Lord Advocate Frank Mulholland branded them “deliberately false and malicious” in the pages of the Scotsman, and dismissed the Justice for Megrahi group as “conspiracy theorists”.

The initial 2013 investigation of the allegations was unimpressive. (...)

The establishment of Police Scotland, combined with some pointed complaints, heralded a transformation.  A team of detectives was assigned to investigate the allegations, codenamed “Operation Sandwood”.  These officers have been working diligently on the material submitted by JFM for over two years.  Although a report was originally expected by the summer of 2015, the need to follow up additional leads and the desire to do a thorough job caused this to be postponed, and submission is currently expected in May 2016.

The allegations cover three main headings.  First, that the original police and forensic investigation ignored or sidelined crucial evidence demonstrating that the bomb was already in the baggage container an hour before the feeder flight from Frankfurt landed at Heathrow.  Second, that while police and forensic investigators knew very well that the metallurgical analysis of the printed circuit board fragment PT/35b showed that it had never been part of one of the MST-13 timers supplied to the Libyan armed forces, this information was concealed from the defence and the court, even to the point of a witness giving misleading testimony in the witness box.  Third, that the handling of the witness Tony Gauci was improper even by the standards of 1991-92, with the police investigation focussed on acquiring statements that could be represented as identifying Megrahi as the man who bought the clothes packed in the bomb suitcase rather than investigating dispassionately whether this was actually likely to be the case.  A fourth ground concerns misleading and untrue information supplied to the court by a member of the prosecution team, concerning the credibility of the witness Abdul Majid Giaka.

Thus, for the past two years, two fundamentally conflicting Lockerbie inquiries have been ongoing within Police Scotland.  The Crown Office’s own investigation, predicated entirely on the assumption that the bomb was introduced into the airport baggage system on Malta, and Operation Sandwood, which is examining evidence showing that the crime happened at Heathrow airport.  Something has to give.

The Lord Advocate has made it entirely clear that he gives credence to one position and one position only, the Malta origin theory. (...)

Operation Sandwood is due to submit its report in a few weeks time.  The dispute now centres on who will consider that report and decide whether charges should be brought as a result of the investigation.  As Crown Office personnel are among those accused, Justice for Megrahi strongly believes that the Crown Office should stand aside in favour of an independent prosecutor appointed from another jurisdiction.  The Lord Advocate however insists that the report will be considered by the Crown Office, merely conceding that he will not personally become involved in the process.

The Lord Advocate has fatally compromised his own position.  He has repeatedly attacked Justice for Megrahi in the most intemperate manner, publicly denouncing the original allegations as “defamatory, deliberately false and malicious” before he had even read them.  How or why the organisation he heads should not be excluded from the process on the same grounds has not been explained.  At a press conference on 16th March 2016 Mr. Len Murray, one of Scotland's most distinguished court practitioners and committee member of Justice for Megrahi, denounced Mr. Mulholland’s behaviour as scandalous and declared that his position was now untenable.

Nevertheless, this is perhaps not the fundamental issue.  If Operation Sandwood recommends criminal proceedings should follow as a result of their investigations, the law should take its course.  However, such a recommendation is by no means certain.  If there is insufficient evidence of wrongdoing to warrant any prosecutions, should the matter end there?

The reputation of Scotland’s criminal justice system rests on how this matter is handled.  A scandal of monumental proportions is brewing.  If the Operation Sandwood report confirms that the original Lockerbie investigation was completely off the rails, that it was looking for the bomb in the wrong airport, that it accused Libya on the basis of a fragment of printed circuit board that was never part of a device supplied to that country, and that it cajoled and bribed a witness to identify a man he’d never seen before as the purchaser of the clothes packed in the bomb suitcase, this cannot and must not be buried in top secret archives to spare the blushes of the Crown Office.

The answer to the most fundamental question about the Lockerbie disaster lies within the report being prepared by the Operation Sandwood detectives.  Where did the bomb that blew apart Pan Am flight 103 nearly six miles above the town begin its journey?  The people of Scotland, and the relatives of the dead, have the right to know.

[RB: This blog’s coverage of the four previous articles by Dr Kerr can be found here.]