Mulholland and FBI in secret Libya mission

This is the headline over a report in Wednesday's edition of The Herald regarding the Libya visit of Lord Advocate Frank Mulholland QC and FBI Director Robert Mueller.  The report can be read here. The report on the BBC News website can be read here; Thursday's edition of The Scotsman also runs a story which can be read here; The Herald on Thursday has an article which can be read here. It also has a report about the failure of the police to hand over to the defence (and only very much later than it was discovered to the Crown) details in their possession about the Heathrow break-in in the baggage build-up area just hours before the destruction of Pan Am 103.


The Firm's report on the Mulholland visit to Libya, headlined "Mulholland's visit to Libya a 'charade'", and featuring a statement from Justice for Megrahi can be read here.

Law Officers to join Faculty of Advocates

Elish Angiolini QC , the Lord Advocate and Frank Mulholland QC, the Solicitor General for Scotland, are to become members of the Faculty of Advocates.

In a statement issued today the Faculty said: “The Dean of the Faculty of Advocates Richard Keen QC, is pleased to announce the prospective admission to membership of the Faculty of Elish Angiolini QC, the Lord Advocate and Frank Mulholland QC, the Solicitor General.

“Mrs Angiolini and Mr Mulholland have played a leading role in the legal profession for a number of years and it is entirely appropriate that they should join the Faculty with its long tradition of service to the justice system and the people of Scotland.”

They will be formally admitted to membership of the Faculty at a calling ceremony on November 7.

A spokesperson for the Crown Office and Procurator Fiscal Service said:

"Mrs Angiolini and Mr Mulholland are honoured to have been invited to apply to join the Faculty of Advocates, which is highly respected for its central role in delivering independent legal services in Scotland."

[From the website of Scottish lawyers' magazine, The Firm. The Dean of Faculty, Richard Keen QC, was senior counsel for Lamin Fhimah, the acquitted co-accused in the Lockerbie trial at Camp Zeist. There is an interesting article on Mrs Angiolini's forthcoming membership of the Faculty of Advocates, and the possible reasons for it, on The Scotsman website.]

Lord Advocate Frank Mulholland meets FBI over Lockerbie bombing probe

[This is the headline over a report published today in the Daily Record.  It reads in part:]

Scotland's top lawman has held talks with the FBI over plans to step up new inquiries into the Lockerbie bombing.

Lord Advocate Frank Mulholland met FBI director Robert Mueller and US Attorney Gereral Eric Holder in Washington last night.

It came as both countries prepare to send investigators to Libya to seek new evidence and speak to witnesses inthe hope of staging a second trial over the bombing of Pan Am Flight 103.

Mulholland said: “The meeting was to renew rapport over the joint inquiry into state-sponsored terrorism and explore the opportunities we have to bring others to justice.”

It is understood a number of potential witnesses have been identified. Negotiations are taking place to insure they are interviewed.

Hopes are high that vital evidence needed to convict those who acted along with Abdelbaset al-Megrahi will be uncovered.

One target is Lamin Khalifa Fhimah, who stood trial with Megrahi but was acquitted.

Mulholland has already set up a Lockerbie inquiry unit aimed at uncovering new evidence against Fhimah, 55.

The move came after Holyrood scrapped the double-jeopardy law which prevented people being tried twice for the same crime. (...)

Fhimah recently backed the Libyan rebels as the Gaddafi regime fell.

It was thought to be a desperate bid to persuade them not to hand him over for a re-trial.

Former justice minister Mustafa Abdul-Jalil, who claims to have evidence of Gaddafi’s involvement in Lockerbie, is a prominent figure in the new Libyan regime.

Scottish police have also questioned former foreign minister Moussa Koussa, who defected from the Gaddafi regime and is said to hold key information about the 1988 attack.

Other suspects include Gaddafi’s brother-in-law Abdullah Senussi, who headed Libya’s intelligence services, and Ibrahim Nayili, Libya’s former head of airline security.

[A report (behind the paywall) in today's edition of The Times contains the following paragraph:]

The US authorities were furious when Kenny MacAskill, the Scottish Justice Secretary, allowed al-Megrahi to be released on compassionate grounds more than two years ago, but, in a sign that relations are improving, the Lord Advocate has been working with the FBI in recent weeks on a detailed plan to find others who were involved in the attack.

[More public relations puffery from the Crown Office. There is not the slightest sign that the Crown Office or the FBI are pursuing the copious evidence that exonerates Abdelbaset Megrahi. On this of all days, the relatives of those who died in the Lockerbie disaster deserve better.]

Crown Office musical chairs

Posted from Istanbul Atatürk Airport:

In the course of my great trek from the Roggeveld Karoo to Edinburgh, I have belatedly discovered (a) that the Crown Agent, the civil service head of the Crown Office and Procurator Fiscal service, has resigned and (b) that the ministerial head of that department, the Lord Advocate, Frank Mulholland QC, has announced that he will demit office after the Scottish Parliament elections to be held on 5 May 2016. 

Have the Megrahi case and the imminent submission by Police Scotland of the Operation Sandwood report on Justice for Megrahi’s nine allegation of criminal misconduct in the Lockerbie investigation, prosecution and trial any bearing on these departures? Who knows? And I have no doubt that the Crown Office would scathingly reject the suggestion. (Indeed, I see that it has done so.) Iain McKie makes some highly pertinent comments here.

As far as the replacement Lord Advocate is concerned, what I wrote when Mr Mulholland was appointed in 2011 is equally applicable to his successor:

“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.”

The present Solicitor General for Scotland, Lesley Thomson, like Frank Mulholland, was appointed from within the ranks of Crown Office staffers. It would be a grave mistake for her to be promoted to Lord Advocate.

Frank Mulholland to become judge

[A Scottish Government press release announces today that the Lord Advocate, Frank Mulholland QC is amongst five new judges of the Court of Session and High Court of Justiciary. It reads as follows:]

Her Majesty the Queen has appointed five new Senators to the College of Justice on the recommendation of the First Minister.

Sheriff John Beckett QC, Ailsa Carmichael QC, Alistair Clark QC, the Rt Hon Frank Mulholland QC and Andrew Stewart QC will sit as judges in the Court of Session and the High Court of Justiciary.

The judges will deal with Scotland’s most important criminal and civil cases.

Their appointments take effect on dates to be agreed by the Lord President. Four of the appointments are to fill existing vacancies. The fifth appointment, to be taken up by Frank Mulholland QC, will take effect following the retirement of a senator later in the year.

The issue is public confidence in the administration of criminal justice

[Yesterday’s Justice for Megrahi press conference gets extensive coverage in the media today. Here are two samples:]

From The National:

Campaigners who believe Abdelbaset al-Megrahi was wrongly convicted of the Lockerbie bombing in 1988 have said Lord Advocate Frank Mulholland and the Crown Office should play no part in considering a Police Scotland report into criminal allegations they have made over the case.

And Len Murray, a leading figure in Scottish legal circles, said Mulholland’s position was “untenable”, although any question of resignation was a matter for him. (...)

JfM made nine allegations of criminality in September 2012 against police, Crown Office officials and forensic scientists involved in the original investigation into the bombing and the subsequent trial at Camp Zeist in the Netherlands. They included perjury and perverting the course of justice.

However, JfM said the Lord Advocate and Crown Office personnel subsequently described them as “conspiracy theorists” and dismissed the allegations as “defamatory and entirely unfounded”.

“We feel very strongly that in the light of the sometimes scandalous outbursts that have come from Crown Office and the office of the Lord Advocate, they have disqualified themselves from considering the report which Police Scotland will be making following their inquiry into the nine allegations,” said Murray.

“It is perfectly obvious from these outbursts… that both the Lord Advocate and Crown Office have already taken a view on the matter, and therefore there is no prospect of that police report being considered fairly and impartially.”

[Brian] McConnachie [QC], a former principal advocate depute, said: “We know that Crown Office and the Lord Advocate have expressed what would appear to be a concluded view about the matter and that perhaps is simply symptomatic of the fact that Crown Office these days seem to consider as part of their job to pronounce in relation to pretty much any case or any profile at all.

“But the difficulty here is that if the Lord Advocate has expressed what would appear to be a concluded view about a matter, it is very difficult to see any way in which justice can be done or be seen to be done if the person who is deciding whether or not there are to be proceedings is the person who has already told us that the allegations are defamatory, unfounded and false.”

[John] Finnie [MSP] added: “Justice for Megrahi have posed a series of questions about how the police inquiry will be responded to by Crown Office – eight entirely reasonable questions, and I suspect had there been replies to these questions that you wouldn’t be sitting here today.

“What we maybe should do is tear the top of the paper off that says Justice for Megrahi and say ‘what does this mean for the ordinary citizen who makes serious and significant allegations against very senior people who are involved in our criminal justice system?’”

[Professor Alan] Page said the issue was about public confidence in the administration of criminal justice and that the allegations made by JfM had been dismissed “out of hand as unfounded, false and misleading”.

“This calls into question whether or not the Crown Office is capable of approaching them with the open mind that the administration of criminal justice, which in my view and I think in everyone else’s view, requires.”

From Sputnik International:

Lord Advocate of Scotland Frank Mulholland, the country’s most senior state prosecutor, will be deemed "unfit to hold office" if he does not pass a report into alleged criminality involving his office’s personnel to an independent prosecutor, spokesman for a justice campaign group considering the case told Sputnik on Wednesday.

After a three-year criminal investigation, Police Scotland are now set to pass a report to the Crown Office and Procurator Fiscal Service (COPFS), Scotland’s prosecution service. It follows allegations that senior prosecutors, police officers and prosecution witnesses acted with criminal intent during the trial of Libyan Abdelbaset Megrahi who was convicted of the 1988 bombing of Pan Am flight 103 over the Scottish town of Lockerbie. The claims against prosecutor's office include perversion of the course of justice and perjury.

It is vital that Mulholland avoids a conflict of interest between himself and his duty to the Scottish public, Robert Black of the Justice for Megrahi committee said.

"If the Lord Advocate and COPFS do not recognize and appreciate this, then the Lord Advocate is unfit to hold office and COPFS has lost its moral compass," Black said.

An open letter from John Ashton to Magnus Linklater

[What follows is an open letter posted today on John Ashton’s Megrahi: You are my Jury website.  It reads in part:]

Dear Magnus,

First of all, let’s keep this civil. People I respect assure me that you are a decent man. I don’t want to make an enemy of you, or things to get nasty.  I’m writing to respond to a few things that you have written, to put the record straight on certain matters and to invite your response. I would like a debate, not a row – shouting doesn’t win arguments.

The first matter I would like to discuss is your article of 13 August last year, which commented upon the Edinburgh book festival event at which, Jim Swire, Professor Hans Koechler and I spoke. Here is what you wrote: [RB: The full text of Mr Linklater’s article can be found here.]

This seriously misrepresented my position and, as far as I know, that of Dr Swire and Professor Koechler. I have never alleged that there was a grand conspiracy to frame Megrahi and Libya, in which the police, the Crown Office, witnesses, judges, senior politicians and the intelligence services were all complicit. You claim to have read my book, Megrahi: You are My Jury.  Perhaps, then, you had forgotten pp 371 to 373, which discuss the possible framing of Libya, either by the CIA, or by the real bombers. At no point do those page suggest that the Scottish authorities (the police, Crown Office and judges) were party to such a plot. You may also have forgotten this passage on p376 in Megrahi’s words, which happens to mirror my own view:

I often wonder who is to blame for my ordeal. I doubt we’ll ever know who framed me and my country. The police cannot be blamed for following leads that fell into their laps. Together with the Crown, they stitched together a flimsy case based around a mercenary double agent, a highly unreliable identification, a hopeless CIA informant, some highly equivocal documents and overstated forensic conclusions, but, again, they were only doing their jobs.

My new book, Scotland’s Shame, is more explicit. Chapter 6 opens as follows:

Let us be clear, there was no grand conspiracy by the intelligence services, senior politicians, police officers, prosecutors and judges to subvert the Lockerbie investigation and frame Megrahi and Libya. Conspiracies, of course, do sometimes happen, but seldom ones involving so many diverse parties.

To digress for a moment, both books posit that there may have been a plot, hatched in the murkier recesses of the US intelligence world, to frame Libya. You can write this off as a crazy conspiracy theory if you like, but, remember, these are the people who spawned a far bigger conspiracies to sell arms to Iran in return for US hostages and to use the profits to illegally support Nicaraguan terrorists. They are also the people who spent the Eighties spreading disinformation about Libya; a fact reported by, among others, Bob Woodward and confirmed by US government documents (in case you think I am recycling old conspiracy theories). Remember also that one of the three key witnesses, Magid Giaka, was a CIA informant before Lockerbie. Another, Edwin Bollier, was also almost certainly a western intelligence asset (the Stasi, with whom he had been dealing since at least the early Seventies, kept close tabs on him and were convinced that he was). We now know that the famous fragment of circuit board, PT/35b, which the Crown claimed originated from one of the 20 timers supplied by Bollier to Libya, could not have done so. We don’t know its origin, but it’s not unreasonable to suggest that it was faked in order to lay a false trail to Libya. According to the head of the FBI investigation, Richard Marquise, the Swiss security police believed that it was a plant, and the same thought even crossed Marquise’s mind. He also revealed that an unnamed US intelligence agency (the NSA from his description) was aware that Megrahi was travelling around on a false passport. It is quite possible that the CIA identified Megrahi as a handy culprit and worked backwards to implicate him.

But this is to stray from the big issue, which is the very Scottish debacle of Megrahi’s conviction. Let’s start by considering the guilty verdict and the 80-page judgment upon which it was founded. As you know, the verdict was based on him buying clothes from the Maltese shop, owned by the Crown’s star witness, Tony Gauci, on 7 December 1988. According to the Crown’s evidence, this was his only window of opportunity, so, if it wasn’t 7 December, the case collapses. The court was told by Gauci that, as the man left the shop, he bought an umbrella because it was raining. The trouble is, the weather data for 7 December, recorded just a few kilometres away, show that it wasn’t raining.  The judges knew this, yet still concluded the clothes were bought on 7 December. We say this was unreasonable. Does that make us conspiracy theorists? If so, we’re in good company, because the Scottish Criminal Cases Review Commission said it too; in fact it was one of the six grounds upon which they referred the case back to the appeal court. These are their exact words:

The Commission does not consider there to be any reasonable basis for the trial court’s conclusion that the purchase took place on 7 December 1988 and therefore for the inference it drew that the applicant was the purchaser of the items from Mary’s House.

This is devastating, because, given the centrality of 7 December to the conviction, the commission had come as close as it legally could to saying, not only that the judgment was unreasonable, but also the guilty verdict itself.

The other major concern of Megrahi’s supporters is with the conduct of the Crown. We say that they withheld numerous items of evidence that would have helped Megrahi’s defence.  Does that make us conspiracy theorists? No, it merely means that we have read the SCCRC’s report. Remember that no fewer than four of the SCCRC’s six grounds of referral concerned undisclosed evidence.

Remember also what happened at trial in relation to the CIA cables concerning Majid Giaka. The Crown originally disclosed only heavily redacted versions. The defence then got word that the Crown had secretly viewed largely unredacted copies at the US embassy in The Hague. When the defence raised this with the court, the lord advocate Colin Boyd offered the assurance that there was nothing in the blanked out sections that bore upon the defence case. When, under pressure from the judges, the Crown handed over less redacted versions, one close observer noted: ‘Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond.’ In a pointed nod to the lord advocate’s earlier assurance, he noted ‘I frankly find it inconceivable that it could have been thought otherwise.’ In other words, he believed that the lord advocate, had seriously, if unwittingly, misled the court. Was this observer a crazy conspiracy theorist? No, actually it was defence counsel Richard Keen, the current dean of the faculty of advocates. And why did he say it? Because it was blindingly obvious that the redacted information cast Giaka in a very bad light and thus, contrary to the lord advocate’s claim, significantly undermined the Crown case.

We do not allege that the withholding of important evidence was part of a huge government and intelligence services inspired plot, rather we suggest that it resulted from a series of appalling failures that were specific to the Crown Office and its servants. The committee of Justice for Megrahi, of which I am not a member, has made allegations – which do not appear in either of my books – that some of these failures might amount to criminal conduct. Whether they do or not, as I have made clear in Scotland’s Shame, the failings almost certainly arose because those responsible wished to secure the conviction of people whom they sincerely believed to be guilty, and not because they wanted to protect the real bombers and see innocent people convicted.

Conspiracy theorist is a label that is often used by politicians and, I hate to say it, lazy journalists, who have run out of reasonable arguments, in order to denigrate and marginalise those who challenge the official line on controversial issues. Funnily enough, the current lord advocate, Frank Mulholland, uses it too.

Which brings me to your interview with Mulholland, published on the 21 December last year, under the headline Pro-Megrahi backers flayed. The article billed the interview as ‘the most detailed rebuttal yet made’ against the claims of Megrahi’s supporters, yet there was no detailed rebuttal at all, just general assertions, a bit a bluster and some serious distortions.

You reported that Mulholland had invited in an independent counsel to conduct a review of the evidence and that he or she had concluded that the conviction was sound. The truth was very different. As Mulholland later revealed in a letter to MSP James Kelly, the independent counsel was in fact brought in by his predecessor Elish Angiolini five years earlier at the time of the SCCRC’s referral of the case to the appeal court. The purpose of the review was to establish whether there was anything in the SCCRC report and its appendices that suggested that the Crown should not defend the conviction. Mulholland told Kelly: ‘The outcome of the review satisfied me that the Crown had a robust defence to the potential grounds of appeal identified by the SCCRC.’ This did not mean that the independent counsel had concluded that the conviction was sound. The review had not considered any of the important evidence that had emerged since 2007, in particular the forensic evidence, revealed in Megrahi: You Are My Jury, which showed that PT/35b could not have originated from one of the 20 Mebo timers supplied to Libya.

On the subject of the book, the article said that Mulholland had considered all of its claims and ‘finds no evidence to support them’. Did it not occur to you that this was rather an odd statement to make, given that the book’s assault on the Crown case was all based on Crown evidence – much of it previously undisclosed – and the word of Crown witnesses? And did you not think to ask him why the Crown had withheld so much important evidence? And why the Crown Office had allowed the police to seek a multi-million dollar reward for Tony Gauci from the US government, even though it was forbidden by its own rules from seeking or making such a reward itself? Isn’t the role of responsible journalism to ask awkward questions of those in authority, rather than amplify their defences?

And did you not think it rather inappropriate for the lord advocate to be denigrating as conspiracy theorists people such as Dr Jim Swire and the former parish priest of Lockerbie, Father Pat Keegans? The Crown Office claimed in a press statement that these same people had been ‘deliberately misleading’, in other words, that they were liars. What a truly appalling – and, for the record, untrue – thing to say about decent people who are simply concerned that justice has not been done. I can’t imagine the Director of Public Prosecutions and the CPS lashing out like that, can you?

You revived the ‘conspiracy theorists’ slur in a Times column on 4 October. This time you added two further claims. One was that Megrahi’s decision to drop his appeal ‘has never been properly explained’, which, in your view, is the weakest plank in his case.  If you had properly read Megrahi: You are my Jury, you would know that the explanation for Megrahi dropping his appeal is that the Libyan minister Abdelati al-Obedi told him that Kenny MacAskill had privately indicated to him (Obedi) that it would be easier to grant compassionate release if he did so.  I have spoken to all the witnesses to the conversation between Obedi and Megrahi and they all confirm the accuracy of the book’s account of it. Megrahi had advanced cancer and was desperate to get back to his family. He knew that he was not legally obliged to abandon the appeal, but, in the circumstances, felt that he had no choice. If you had been stuck in a foreign prison with advanced cancer, would you have reacted differently to such pressure? I doubt it.

Your other claim concerned the evidence about Heathrow airport. You wrote:

For all the many thousands of words that have been written suggesting that the prosecution case was flawed, and that the Scottish legal system presided over a spectacular miscarriage of justice, the alternative theories are well short of sustaining proof.

It is one thing to challenge the evidence on which al-Megrahi was convicted, another to sustain a case that is not, itself, threadbare.

Dr Swire believes that the bomb was not put on board Pan Am 103 on Malta, but that it was smuggled onto the plane at Heathrow Airport. This, along with other theories, was advanced at the time of the trial, examined, and dismissed for want of evidence.

You subsequently tweeted that Heathrow is the weak link in our argument, that the evidence suggesting that the bomb originated there ‘was tested to destruction’ at Megrahi’s trial and that ‘there’s simply no evidence to back it.’ Dear me, how misinformed can you be?

Before responding in detail, it’s worth pointing out that it is not incumbent upon us, Megrahi’s supporters, to prove an alternative case. It just so happens that we think that there is at least one alternative that stands up better than the prosecution case.

Anyway, about that Heathrow evidence. As you know, the bomb exploded in luggage container AVE4041. Most of the bags in there had been unloaded from the Frankfurt feeder flight, PA103A, including, according to the Crown, the brown Samsonite from Malta. However, there was some other luggage in there, which had been loaded before PA103A arrived. This was supposedly Heathrow interline luggage, meaning it had arrived at Heathrow on other flights. All of the loaders who were involved in packing AVE4041 confirmed something very significant: before the Frankfurt bags were loaded the entire floor of the container was covered with luggage. One of the loaders, John Bedford, recalled seeing something still more significant: a brown hardshell suitcase ‘the type Samsonite make’, positioned very close to where the explosion later occurred. He saw it when AVE4041 was in the interline baggage shed, well before the Frankfurt flight arrived. Bedford was clear that he hadn’t put it there and so too was the only other person on duty in the shed, Sulkash Kamboj.

The police produced a detailed schedule of all the baggage that could have found its way into AVE4041. It demonstrated that a maximum of six Heathrow interline bags could have been in the container before PA103A arrived, all of which were within the normal size range. However – and here’s the rub – covering the base of the container could have required seven or eight standard sized cases, just as in this photo:

The schedule showed something else very important: none of the six legitimate bags were brown, hard-shelled suitcases.

The loader who added the Frankfurt bags, Amarjit Sidhu, was sure that he did not move any of the bags that were already in AVE4041 when he added the Frankfurt bags, indeed, most of the loaders said that it was not their custom to rearrange bags. So, the Bedford case must have been very close to the explosion, indeed, according to the Crown case, it should have been immediately below the brown Samsonite suitcase from Malta. If that suitcase existed, then the police should have recovered fragments of two brown hard-shelled cases, but they only found fragments of one. So, what happened to the Bedford case? The obvious answer is that it contained the bomb and that the Malta case never existed.  Security around the interline shed was non-existent and, as Bedford acknowledged in evidence, anyone with airside access could have placed a suitcase into the container.

But wasn’t the bomb suitcase in the second layer of luggage, slightly overhanging the angled section of AVE4041 and Bedford’s in the first layer? That’s what the Crown claimed, but the scientific support for it is, to say the least, equivocal (see pp 395-404 of Megrahi: You are my Jury). And, if you look back at that photo, it’s clear that a suitcase could be in the bottom layer yet still overhang the angled section.

The Crown disclosed the police schedule to the defence early on during the trial preparations and notified them that they would be running an exclusion case, ie they would show that all the bags in AVE4041 were legitimate apart from the one allegedly from Malta. But, guess what, the schedule was not among the Crown productions that were later lodged with the court. Furthermore, the Crown didn’t run an exclusion case, probably because they couldn’t exclude the Bedford suitcase.

The Crown told the defence that the schedule contained inaccuracies, which may account for why the defence didn’t use it at trial. However, there is no evidence that its key finding – that there were only six legitimate items in AVE4041 when the Frankfurt flight arrived, none of which was a brown hard-sided case – was mistaken. If there was such evidence, the Crown would likely have used it to undermine the Bedford bag theory.

As for the evidence being ‘tested to destruction’ at the trial, this is simply wrong for two reasons. The first is that much of the key the evidence was absent. The Crown relied on the Maltese clothes and documents from Frankfurt airport to support their claim that the bomb had come from Malta, while the defence submitted that the Bedford case matched the bomb suitcase, that it was at, or could easily have been moved to, the location at which the explosion occurred, and that remains of only one brown hard-shelled case had been recovered. None of the following were not put before the court:

• The crucial baggage schedule
• The voluminious witness and documentary evidence upon which it was based
• Detailed evidence forensic and witness evidence about the likely positioning of most of the blast damaged cases (a potentially crucial issue in determining the location and identity of the primary suitcase)
• The evidence of Sidhu, who added the Frankfurt luggage, who was sure that he never rearranged any of the bags.

The defence’s reasons for not running an exclusion case based on the baggage schedule were articulated by John Beckett in a response to the appeal court and are summarised at pp335-6 of Megrahi: You are My Jury. Regardless of whether those reasons hold water – and one can make a strong case that they don’t – by not presenting the schedule and the other evidence listed above, both sides prevented the full picture from emerging.

The second reason is that the judges sidestepped the issue of the Bedford suitcase. To remind you, they acknowledged that Bedford was ‘a clear and impressive witness’ and that the evidence supported the defence submission ‘that a suitcase which could fit the forensic description of the primary suitcase was in the container when it left the interline shed.’ So, how did they get around the issues? By relying on evidence from another loader, Terence Crabtree, who was not involved in loading the Frankfurt bags into AVE4041, that luggage was sometimes rearranged. They acknowledged that, if this happened – and according to the actual loader of AVE4041, Sidhu, it didn’t – then the Bedford case could have ended up in the second layer, in exactly the position that the Crown claimed the primary suitcase was in. But, they then added: ‘if there was such a rearrangement, the suitcase described by Mr Bedford might have been placed at some more remote corner of the container, and while the forensic evidence dealt with all the items recovered which showed direct explosive damage, twenty-five in total, there were many other items of baggage found which were not dealt with in detail in the evidence in the case.’ So, it seemed that the judges believed that it for was the defence to run an exclusion case in order to prove the Bedford suitcase bomb scenario, not for the Crown to run one in order to prove the Maltese scenario. A novel reversal of the burden of proof, wouldn’t you say? And one that fell a long way short of testing the Heathrow evidence to destruction.

There is much more to be said about Heathrow, all of which goes to demonstrate that the Bedford suitcase contained the bomb. Dr Morag Kerr has written a book about it, due to be published soon, which I recommend that you read. She is no daft conspiracy theorist, indeed, before her involvement in the case she spent a lot of time taking on 9/11 conspiracists; she simply combines rigorous attention to detail with rigorous logic. I doubt that anyone, including the Crown and defence lawyers, has devoted so much time to the issue. Her aim has been to uncover the truth, not to win a tactical court battle.

If, as seems very likely, the Bedford case contained the bomb, then the evidence from Malta and Frankfurt becomes irrelevant, but let’s look at it anyway. First Malta. What evidence is there from Luqa airport, from where the bomb supposedly began its journey? None. That’s right, none. According to the Crown, Megrahi and Fhimah somehow – the advocate depute was not specific – smuggled the bomb suitcase onto Air Malta flight KM180 to Frankfurt. The airline had unusually strict baggage procedures, which meant that the head loader had to physically count the number of bags in the hold to check that the total tallied with the number of legitimate check-in bags. It did. What’s more, there is no evidence of any suspicious activity around the plane and no evidence that the pair had corrupted any Air Malta staff. The Crown case was that the difficulties of getting a rogue bag onto KM180 were such that Megrahi must have had assistance from Fhimah, ie they must both have been guilty. Fhimah was, of course, acquitted, which begs the question, which the judges failed to answer: how, and with whose help, was Megrahi able to get a suitcase onto KM180?

Another close observer of the case commented:

[T]here is considerable and quite convincing evidence that [the placing of an unaccompanied suitcase onto KM180] could not have happened … Now, it’s quite difficult rationally to follow how the Court can take the step of saying, ‘Well, we don’t know how it got on to the flight. We can’t say that. But it must have been there.’ On the face of it, it may not be a rational conclusion.

Was this person a deluded conspiracy theorist? No, he was Lord Osborne, one of the judges who heard Megrahi’s first appeal. (In view of this comment, one wonders if the outcome of that appeal might have been different had the defence submitted that the trial verdict was unreasonable.)

What other evidence is there from Malta? Only the clothes from Tony Gauci’s shop. Clearly, they do not prove the origin of the bomb. They were bought, according to the Crown, on 7 December 1988, so could have been anywhere by the day of the bombing two weeks later.

It was the documents from Frankfurt airport that proved to be the clincher. They supposedly showed the transfer of a bag from KM180 to PA103A, but they fell woefully short of proof. All they in fact showed that a luggage tray was dispatched through the airport’s automated luggage system from a particular input station to PA103A’s departure gate at a time when bags from KM180 were supposedly being processed at the station. We assume that there was a bag in the tray, but there’s no proof that there was, still less proof that it was a brown Samsonite from Malta. As the German police discovered, the Frankfurt evidence was incomplete and confusing. What evidence there was indicates that at least one other unaccounted for unaccompanied bag was on PA103A. The police produced a schedule of all the baggage found at Lockerbie, but the Crown did not see fit to disclose it. It’s likely that it included bags that the police were unable to link to their owners, any one of which could have been in the tray that supposedly contained the Maltese suitcase.

The officer who conducted the luggage transfer analysis at Frankfurt, Jurgen Fuhl, concluded after an 18-month investigation: ‘Throughout the enquiries in to the baggage for PA103A there was no evidence that the item of baggage containing the bomb had gone with the baggage from or via Frankfurt/Main to London. In connection with the information about the other contents of the bomb-case (textiles from a shop on Malta) and the possible transfer of a case in Frankfurt from KM180 this possibility can however not be excluded altogether.’ So, the Crown’s claim that the bag was transferred from KM180 to PA103 could not, in the words of the man who knew most about the Frankfurt baggage evidence ‘be excluded altogether.’ Hardly proof beyond reasonable doubt, eh?

Remember, no one at Malta or Frankfurt recalled seeing a brown, Samsonite type suitcase anywhere near the feeder flights KM180 and PA103A. Only one person recalled seeing such a case, John Bedford, furthermore, in contrast to much of the evidence of the Crown’s star witnesses Tony Gauci and Majid Giaka, his recollection was unprompted.

Finally, some questions for you.

1. Do you still say that we believe that the Scottish police, prosecutors and judges were party to a grand conspiracy?

2. Do you not think that the SCCRC’s findings that the trial court judgment was unreasonable, and that the Crown had withheld numerous items of exculpatory evidence, leave a terrible stain on Scottish justice?

3. Are you comfortable with the lord advocate and Crown Office branding their opponents as conspiracy theorists and de facto liars?

4. Do you really still believe that the Heathrow evidence was tested to destruction?

You can email me via this website. I look forward to your response.

Kind regards,

John.

'Realistic possibility' of second Lockerbie bombing trial

[This is the headline over a report published this evening on the STV News website. It reads in part:]

Scotland's chief law officer believes there is a "realistic possibility" of a second trial over the murder of 270 people in the Lockerbie bombing.

Scottish and American investigators announced last year that they had identified two Libyans as suspects over the 1988 atrocity but since then very little has been said publicly about the case.

In an interview with STV News to mark his departure from the post after five years, lord advocate Frank Mulholland QC discussed the prospect of fresh prosecutions over Britain's biggest mass murder.

"I've been to Tripoli twice," said. "I've established good relations with the law enforcement attorney general in Libya.

"We're currently at a stage where there are a number of outstanding international letters of request, one of which is seeking the permission of the Libyan authorities to interview two named individuals as suspects.

"Following all the work that's been going on, and it's been painstaking, it's taken some time, it does take time.

"I hope that the Libyans will grant permission for that to be done. I obviously can't say too much publicly but a lot of work is going on behind the scenes to make that happen.

"What I hope is that this will bear fruit and we can take it to the next stage of seeking the extradition of the two named individuals."

Last October, it was announced the lord advocate and the US attorney general had agreed there was "a proper basis in law" to treat the two Libyans as suspects.

The two men were not named by the Scottish or US authorities but they are Abdullah Senussi, Colonel Gaddafi's former intelligence chief, and Abouajela Masud.

Both are being held in jails in Libya - Senussi is appealing against a death sentence while Masud is serving ten years for bomb making. (...)

Asked if there was any realistic possibility of Senussi being surrendered for trial, Frank Mulholland replied: "Before I embarked on this work I was told that there was no possibility, absolutely none, of the Libyans cooperating with law enforcement in Scotland or the United States. That happened.

"In 2011, I attended a ceremony in Arlington where the Libyan ambassador to the US made a public commitment on behalf of the Libyan government to help. They have kept their word. They have helped.

"I said it takes time, and it will take time, and that's certainly something which we are used to in relation to the Lockerbie inquiry.

"If we get to the stage of seeking the extradition of two named individuals or indeed more persons, I think there's a realistic possibility that there could be a further trial."

The two men are suspected of bringing down Pan Am 103 while acting along with Abdelbaset al-Megrahi, who remains the only person convicted of the bombing.

He died protesting his innocence after being released on compassionate grounds by the Scottish Government. A high-profile campaign to clear his name continues.

The lord advocate acknowledged any new Lockerbie trial would involve a public re-examination of the disputed evidence from Megrahi's.

"I don't fear that," he said. "I think that's a good thing. Without seeking to comment on what the outcome would be, I think the evidence would stand up to a further test.

"We wouldn't be doing this unless we thought that the evidence was sufficiently credible and reliable to have them interviewed as suspects, I think that's the best way to put it."

For many years after the bombing it seemed extremely unlikely there would ever be prosecutions over Lockerbie.

Eventually a diplomatic deal paved the way for the first trial to go ahead in a specially-convened Scottish court sitting at Camp Zeist in the Netherlands.

Frank Mulholland first raised the hope that the collapse of Gaddafi's regime could allow Scottish police to visit Libya back in 2011.

He is the first British or American official to publicly express the belief that a second trial could happen, albeit with carefully chosen words.

[RB: In my view the chances of either Senussi or Masud being extradited to stand trial for the Lockerbie bombing are precisely zero. I would, however, be delighted to be proved wrong since, as Frank Mulholland concedes, that would inevitably subject to further scrutiny the evidence that led to the conviction of Abdelbaset Megrahi -- a scrutiny that that evidence could not survive.]