Megrahi, Fhimah and the Crown Office's "live enquiry"

What follows is taken from an item posted on this blog on this date in 2011:

Scottish police will be invited to Tripoli to question Megrahi

[This is the headline over a report in today's edition of The Scotsman (...) It reads in part:]

Libya will invite Scottish police officers to Tripoli to interview the former Libyan agent convicted of the Lockerbie bombing, according to Britain’s foreign minister Alastair Burt.

The move, which could see Dumfries and Galloway police travel to Libya shortly to speak with Abdelbaset Mohmed Ali al-Megrahi, was welcomed by Scotland’s most senior law officer the Lord Advocate Frank Mullholland QC. (...)

Yesterday Megrahi’s brother Nasser said the former Libyan agent, who is suffering from prostate cancer, was too sick to be interviewed by British investigators. (...)

[A report in today's edition of The Guardian contains the following:]

Libyan suspect Al Amin Khalifa Fhimah, cleared of bombing in 2000, could face fresh trial – but victims' families are sceptical

The new Libyan government's undertaking will also hearten Frank Mulholland, the lord advocate and chief prosecutor for Scotland, who announced several months ago he was reopening prosecution files on Lockerbie.

New laws on double jeopardy in Scotland, which will allow previously cleared suspects to be tried again, came into force in late November. That would allow prosecutors to attempt a fresh trial of Al Amin Khalifa Fhimah, who stood trial with Megrahi in 2000 in the Lockerbie case but was cleared by the court.

In August, Fhimah denied any links to the atrocity and insisted he too was a victim of Gaddafi, but some US relatives have pressed for both men to be handed over to the US for a fresh trial – moves the Libyans have brushed away.

Mulholland said yesterday: "The trial court held that the bombing of Pan Am 103 and the murder of 270 people was an act of state-sponsored terrorism and that Megrahi did not act alone. This is a live inquiry and Scottish police and prosecutors will continue to pursue the evidence to bring the others involved to justice."

Megrahi's family insisted he was too ill to meet British officials. Nasser al Megrahi, his brother, said he was being cared for by relatives. "He is really ill," he said. "He is in his room, I have not seen him today. He's too tired to see anyone, even us, his family."

He also questioned why Scottish police and prosecutors would want to reopen the case or interview his brother, since the UK authorities had previously agreed to release Megrahi, who is terminally ill with advanced prostate cancer, on compassionate grounds. "Why would they want to reopen the case? That doesn't make sense, it was not the Gaddafi government that made the judgment, it was the Scottish [government]." (...)

Jean Berkley, convenor of the UK Families of Flight 103, said she was pleased that there was renewed interest in the case, but she was not optimistic that a police visit to Tripoli would uncover significant new information. But she said: "We would welcome any attempts to find out more of the truth because we feel that there's a lot we don't know."

Professor Robert Black, the Scottish lawyer who proposed trying Megrahi and Fhimah on neutral ground in the Netherlands, was sceptical that the initiative would lead to a fresh trial. He said if detectives tried to interview Fhimah as a suspect, they would need to apply new Scottish rules requiring his lawyer to be present.

"If they've now got permission to go and look at Libyan archives to see what they can find, fine, but I'm amazed if they think they can go and interview Megrahi: the position of the Crown Office has been we've got Megrahi, we're now looking for others," he said. "I suspect they'll be talking to people who now head the various ministries in Libya to see whether they can find any archives on Lockerbie when it was under the Gaddafi regime."

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

Crown Office sources indicated yesterday that they had no plans to speak to al-Megrahi, the only man so far convicted of the outrage. Mr Mulholland added: “The trial court held that the bombing of Pan Am 103 and the murder of 270 people was an act of state-sponsored terrorism and that Megrahi did not act alone. This is a live enquiry and Scottish police and prosecutors will continue to pursue the evidence to bring the others involved to justice.”

The convoluted route towards Zeist

[What follows is a Reuters news agency report issued on 8 December 1998:]

The Netherlands on Tuesday pressed ahead with work to prepare a swatch of British soil on Dutch territory for the anticipated trial of two Libyans accused of bombing Pan Am Flight 103 over Scotland 10 years ago.

The Dutch chose the windswept military base of Camp Zeist, 10 km (six miles) from the central city of Utrecht, as the venue for the unique trial, which will be conducted under Scottish law on British soil. A special Anglo-Dutch treaty signed in August permits the transfer of the land. Some 2,400 km (1,500 miles) away in the Libyan coastal city of Sirte, the General People's Congress, Libya's top legislative body, began meeting on Tuesday.

It is the forum, convened once or twice a year for several days, which will formally endorse any decision by Libyan leader Muammar Gaddafi to surrender Abdel Basset Ali Mohamed al-Megrahi and Lamen Khalifa Fhimah to stand trial for the bombing. Camp Zeist's previous claim to fame was that Napoleon once stopped there for the night. German troops occupied the site during World War Two and the US Air Force was stationed there for 40 years until the end of the Cold War with the then Soviet Union in 1991.

If Libya agrees to surrender the two men for trial, the suspects will be housed in a bomb-proof underground complex beneath an American-built hospital. Their transport vehicles will sweep into a covered driveway created for casualties arriving at the emergency department. A barbed-wire fence is all that now keeps unwanted visitors out of Camp Zeist. The hospital is built on a small mound behind a two-metre (six-foot) high wall.

The US and Britain are believed to be stumping up between $100 million and $200 million to pay for the camp's conversion to accommodate several hundred people. Security guards, military personnel, the press and relatives of those that died are all expected to descend en masse on the 10-hectare (25-acre) base. For the present, security is thin-- a white portable cabin manned by a few police officers is the precursor to a much grander operation should the trial go ahead.

So far activity at the site has been low-key. People living nearby say construction work has been kept to a minimum and a thin line of smoke, perhaps from the kitchen, is the only hint of life behind the shuttered windows of the concrete hospital. Behind it, a blue-painted corrugated steel building that was once a sports hall will house the media, officials said.

[Here is what I have written in an as yet unpublished manuscript about this stage in the convoluted route towards a Lockerbie trial:]

It was we [Dr Jim Swire and I, on 21 September 1998] who had to inform the Libyan government that the chosen location in the Netherlands for trial was Kamp van Zeist, a former NATO base to which the air force of the United States still had extant treaty rights of access.  This information was faxed to me (in Dutch, which I can read  -- with difficulty -- through my knowledge of Afrikaans) at my hotel in Tripoli by a Dutch journalist who had developed an interest in Lockerbie and who had heard it from an official at The Hague.  Dr Swire and I discussed whether we should inform our Libyan government contacts of the intended venue and came to the conclusion that we should do so.  One compelling reason for doing so was to preserve the trust that the Libyan government appeared to have developed in us.  Another was our assumption – which may or may not have been justified -- that all our communications in Libya were monitored and that the Libyan authorities would have the information anyway as soon as they could arrange for a copy of the fax to be translated from Dutch into Arabic.

I anticipated that the news about the proposed location would cause the Libyans to renounce the "neutral venue" concept in high dudgeon and complain of the lack of good faith demonstrated by the British Government in selecting, or agreeing to, such a site.  But they did not do so.  When we raised the issue at our next meeting, the Libyan officials were remarkably relaxed about the matter.  This, more than anything else, convinced me that the Libyan government and the Libyan defence lawyers genuinely wished a trial to take place and that the concerns they had expressed regarding details of the scheme now on offer were genuine concerns, not merely a colourable pretext for evading their earlier commitment to such a solution. (...)

I returned to the UK after this visit to Libya reasonably confident that a trial would take place.  It was clear to me that the Libyan authorities at the highest level wanted it to happen and that the accused men wanted their families and themselves to be able to get on with their lives, something that could never happen, even within the boundaries of Libya, while the charges against them remained unresolved and UN sanctions remained in place.  One possible impediment was the hard-line attitude towards surrender for trial overseas that had been taken over the years by the Libyan People’s Congress (the highest legislative and policy-making body under Libya’s idiosyncratic constitution).  However, this potential hurdle was removed on 15 December 2008 when the People’s Congress, at a session held in Sirte, announced that it approved the trial proposal and adjured all three interested governments -- Libya, the United Kingdom and the United States -- to take all necessary steps to remove any remaining obstacles.

Margaret Thatcher "vetoed Lockerbie inquiry"

[What follows is an item from the Memory Lane column of the Bromsgrove Advertiser:]

25 years ago. December 7, 1989

Bromsgrove doctor Jim Swire, whose daughter Flora was killed in the Lockerbie bombing, travelled to London to hear a public inquiry would not be held.

Dr Swire, along with other relatives of the 270 killed, had a two hour meeting with Transport Secretary Cecil Parkinson, who gave them no hope that an inquiry would ever take place.

[Here is what Tam Dalyell has written about this:]

When the relatives went to see the then UK Transport Secretary, Cecil Parkinson, he told them he did agree that there should be a public inquiry. Going out of the door as they were leaving, as an afterthought he said: 'Just one thing. I must clear permission for a public inquiry with colleagues'. Dr Swire, John Mosey and Pamela Dix, the secretary of the Lockerbie relatives, imagined that it was a mere formality. A fortnight later, sheepishly, Parkinson informed them that colleagues had not agreed. At that time there was only one colleague who could possibly have told Parkinson that he was forbidden to do something in his own department. That was the Prime Minister. Only she could have told Parkinson to withdraw his offer, certainly, in my opinion, knowing the man, given in good faith.

Liberty human rights award to UK Families Flight 103

From Jean Berkley:

On 1st December Jean and Barrie Berkley, Jim and Jane Swire and John Mosey attended the Liberty annual Human Rights Awards Ceremony, where the UK Families Flight 103 were given a special award for their persistence over so many years in seeking more of the truth about the Lockerbie disaster and answers to the large number of questions that remain.  We had the opportunity to speak briefly when we were presented with the award and were very well received. Many of those present also approached us later and were very supportive.

First public mention of Lockerbie "star witness" Giaka

[What follows is an article that appeared fifteen years ago today on The Pan Am 103 Crash Website run by Safia Aoude:]

Senior Scottish prosecutors in the Lockerbie bombing case, led by the prosecutor Norman McFadyen, have recently visited the United States to interview a witness who claims to have seen the two Libyan defendants prepare the bomb, according to the British newspaper The Independent. The identity of the mystery witness a Libyan is known to The Independent and has been protected since the man went into hiding in the US in 1992 or earlier. His credibility will be crucial to the full trial, and The Independent did not print his name.

However, this website can reveal that the mystery witness is former Libyan citizen Abdulmajeed Jaeeka. [RB: He is now usually referred to as Abdul Majid Giaka.] He is number one on the witness list of the prosecution, and his address is the US Justice Department in Washington. The witness insisted on dressing as a woman while being questioned recently by Scottish defense attorneys! [RB: It is instructive that this supposedly crucial prosecution witness was precognosced by the defence before he was ever interviewed by the Crown. This nicely illustrates the extent to which the decision to prosecute and the preparation of the prosecution were in the hands of the US Justice Department rather that the Scottish Crown Office.]

Mr Jaeeka has been in a US witness protection programme in undisclosed locations in America since at least 1992. He claims to know the two Libyan defendants, who worked at the Libyan Arab Airlines (LAA) office in Malta, from which the prosecution alleges the bombing was masterminded. Mr Fhimah was working as station manager for LAA in Malta; Mr Megrahi was chief of the security service's airline security division. When the aircraft blew up Jaeeka is said to have been terrified and to have defected. According to The Independent, Mr Jaeeka is believed to have walked into the US Embassy in Rome as a defector.

According to other sources, Mr Jaeeka was simply at that time already showing mental break-up. In 1988 Mr Jaeeka was allegedly undergoing treatment for mental distability following alcoholic abuse. According to the source, Mr Jaeeka did not enter the Libyan embassy in Rome [RB: Surely "US embassy" is meant] as a defector, but he did leave it as such, following a physical attack on the Libyan ambassador in his office. [RB: I do not follow this. In any event it conflicts with the version of Giaka's defection given at the trial.]

Mr McFadyen took a pre-trial statement from the witness, which will be used in the case against the two Libyan defendants. The witness has been in almost total seclusion for at least eight years, fuelling speculation that he may be in a delicate mental state. The Crown Office in Edinburgh, which represents the prosecution, has declined to comment on its contacts with the witness. The defence team will also be allowed to meet the witness.

The indictment against the alleged bombers who were first named three years after the explosion depends heavily on this man's testimony. Under Scottish law, there should be at least one other witness, to corroborate his testimony. About one third of the people on the 1,000-strong witness list come from the US, and many, like the key witness, have their addresses as the US Justice Department in Washington. Most are FBI Agents but there are thought to be others on the witness protection programme. Like the Libyan witness, they are expected to give their testimony to the trial in the Netherlands from behind a screen. It is yet unclear, whether the Scottish judges will allow anonymous witnesses and/or secret evidence in the trial.

The defence will aim to undermine his credibility by showing that he was either misled or is not telling the truth. But the main focus of their case will be that someone else a Middle Eastern group was directly responsible for the destruction of the aircraft.

[RB: The Zeist judges ultimately assessed Giaka as a wholly incredible witness. Read more about him and the Crown’s dealings concerning him here.]

The Zeist judges' unreasonable evidential finding

[On this date in 2000 the defence opened its case in the Lockerbie trial at Camp Zeist. One of the witnesses examined was Major Joseph Mifsud who, between 1979 and 1988, was chief meteorologist at the meteorological office at Luqa Airport in Malta. His evidence can be read here. I have summarised elsewhere his evidence and the background showing its relevance and importance as follows:

“By reference to the dates on which international football matches were broadcast on television on Malta, Tony Gauci was able to narrow down the date of purchase of the items in question [ie the items that accompanied the bomb in the Samsonite suitcase] to either 23 November or 7 December [1988]. [RB: The evidence established that Megrahi had been on Malta on 7 December.] In an attempt to establish just which, the weather conditions in Sliema on these two days were explored. Gauci’s evidence was that when the purchaser left his shop it was raining to such an extent that his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi. The unchallenged meteorological evidence led by the defence established that while it had rained on 23 November at the relevant time, it was unlikely that it had rained at all on 7 December; and if there had been any rain, it would have been at most a few drops, insufficient to wet the ground. On this material, the judges found in fact that the clothes were purchased on 7 December.”

[RB: In June 2007, after a three-year investigation, the Scottish Criminal Cases Review Commission came to the conclusion that Megrahi's conviction may have constituted a miscarriage of justice. One of its six reasons for so finding (and by far the most important one, though this went largely unappreciated in the media) was that in respect of absolutely crucial findings in fact by the trial court (the date of purchase of the clothing that surrounded the bomb and, hence, the identity of the purchaser) no reasonable tribunal could have reached the conclusion that the evidence established that it was Megrahi.]

Another step along the path towards a Lockerbie trial

[What follows is the text of a Reuters news agency report issued on 4 December 1998:]

UN Secretary-General Kofi Annan prepared Friday to fly to Libya to meet Colonel Muammar Gaddafi and try to set in train the trial of two Libyan suspects in the 1988 Lockerbie bombing.

“I will leave Saturday morning for Libya for discussions with Colonel Muammar Gaddafi. I am going to try to settle this problem once and for all,” Annan told reporters after meeting Tunisian President Zine al-Abidine Ben Ali Thursday. News of the trip brought optimism from the United States and Britain, although what diplomats saw as Gaddafi's unpredictably tempered this with caution. A senior US official said Washington hoped the meetings would result in the handover of the two suspects.

But Ambassador Nancy Soderberg, speaking for the US mission to the United Nations, said she did not know what the outcome of Annan's session with Gaddafi would be and how firm his assurances were from Tripoli. “We would expect a meeting between the secretary-general and Libyan officials to produce a handover of the suspects,” Soderberg said. “We expect that to be the purpose of his travel to Libya.”

Annan is due to fly to Sirte, a coastal city 400 km (250 miles) east of the Libyan capital, where Gaddafi usually entertains his guests, after the Security Council sanctions committee approved a waiver for the trip, diplomats said. Britain welcomed Annan's announcement that he would visit Libya. But it made clear that a US-British plan to try the Libyan suspects before a special court of Scottish judges in the Netherlands was non-negotiable.

“Naturally we welcome efforts to implement the UN Security Council resolution (on handing over the suspects). We hope the secretary-general can persuade Gaddafi to reply promptly so justice can be done,” said a British Foreign Office spokesman. “Kofi Annan fully recognizes that the US-British plan is non-negotiable...the best we can hope for from Saturday's meeting is official notification that Gaddafi is prepared to hand over the suspects.”

Western diplomats had said Annan would not go to Libya unless he had been assured Gaddafi had agreed to surrender the suspects for trial. But in private, British officials are reluctant to express optimism about Annan's chances of success. “It is no use trying to figure out what could happen. It is very hard to predict what Gaddafi might do,” one said.

Asked if a deal on the surrender of the two suspects was ready, a diplomat told Reuters: “This is what he hopes to get. He (Annan) appears optimistic.” Diplomats said that chances had improved after weeks of talks with Libyan lawyers on the surrender of the two suspects. “It's not a done deal yet, but it's close,” said one diplomat who declined to be identified.

A Libyan statement denied any about-turn by Gaddafi. “Libya has already announced its acceptance of putting its two nationals on trial at a court in the Netherlands. It has expressed its willingness to enter into negotiations with the concerned parties either directly or through the UN secretary-general over arrangements for this trial,” said the statement carried by the official JANA news agency on Thursday. It said Libya would seek “the necessary guarantees for the Libyan suspects and reserved its right to ask for any clarification.”

[A related BBC News report can be read here.]

MH17 and Pan Am 103 compensation claims compared

[What follows is excerpted from an article published in today’s edition of the Daily Mail:]

Eight families who lost loved ones in the Malaysia Airlines flight MH17 disaster when it was shot out of the sky in rebel-controlled eastern Ukraine are preparing to sue Russia, Ukraine and Malaysia.

The Boeing 777 was travelling from Amsterdam to Kuala Lumpur on July 17 when it was downed, killing all 298 people on board, including 38 Australian citizens and residents. (...)

Aviation lawyer Jerry Skinner, who is based in Alaska, has taken up their case and is preparing to lodge it at the European Court of Human Rights.

Back in July the lawyer first told the Sydney Morning Herald that he could potentially achieve million dollar payouts for the MH17 victims’ families, like he had obtained from Libya for the families of the 1988 Lockerbie disaster.

'Something creative is going to have to be done here because this is too big and too complicated for the judicial system to handle on its own and it involves people who will not yield to the judicial system, such as the Russians and the Ukrainians,' he said.

‘What happened in Lockerbie was that politics got involved and sanctions got involved and we said to the Libyans, if you want to settle this, it doesn't matter what the individuals did [for a living].

‘The parties that are the main participants here are probably the Russians and their allies and also Malaysia Airlines. Both of them bear a lot of responsibility for this.’

Now, Mr Skinner has said he will file a ‘very broad’ claim against Russia, Ukraine, Malaysia and Malaysia Airlines as soon as he gets some final information from the Dutch Safety Board.

[A report published today on the Radio Australia website contains the following:]

An international aviation lawyer is preparing a lawsuit on behalf of families of the Australian victims of the MH17 plane crash.

Jerry Skinner was part of the team that won $US2.7 billion in compensation from Libya over the Lockerbie bombing.

He has been engaged by at least five Australian families who lost relatives when the Malaysia Airlines plane was shot down over Ukraine in July.

Mr Skinner said they deserve the same compensation as the Lockerbie families.

"What happened in the Pan Am bombing, when an action is intentional and not negligent it generates more damages, and those damages were in the neighbourhood of $10 million for families," he said.

"In my way of thinking, since this was an intentional act and the nation states sort of took the bait of a low-flying aeroplane, that would be appropriate."

Mr Skinner is preparing the case against Russia, Ukraine and Malaysia while other families consider joining the action.

The lawsuit is expected to be filed with the European Court of Human Rights.

[RB: There is much about this story that I do not understand. Here is just one example. The European Convention on Human Rights, article 35, provides that the European Court of Human Rights may only deal with a matter after all domestic remedies have been exhausted. The Court is primarily a supervisory or appellate body, not a tribunal of first instance. A case arising out of the destruction of MH17 might well end up in the European Court of Human Rights, but I do not see how it could begin there. Where cases seeking compensation were raised following the Lockerbie disaster, they were -- correctly -- brought in domestic courts, not in the European Court of Human Rights.

Jerry Skinner is not a name that I have previously encountered in connection with the Pan Am 103 case. While a number of US attorneys represented relatives of Lockerbie victims in compensation negotiations with Libya, the lead firm was Kreindler & Kreindler.]

As thin as homœopathic soup

On this date fourteen years ago, the Lockerbie trial was in recess following the close of the prosecution case and before the opening of the defence case. Here is a link to my contemporaneous assessment of what the Crown could be taken to have proved. My view, then as now, was that the evidence against the two accused was “as thin as the homœopathic soup that was made by boiling the shadow of a pigeon that had starved to death”.

This wonderful description comes from Abraham Lincoln while running for election as United States Senator for the state of Illinois in 1858. Lincoln (Republican) and his Democrat opponent Stephen A Douglas participated in a series of debates during one of which Lincoln described Douglas’s argument (on states’ sovereignty) in these memorable terms.  Lincoln lost that election. However, the US presidential election of 1860 involved the same two candidates (amongst others). Lincoln won. I remain optimistic that the Justice for Megrahi campaign, like Lincoln, will win in the end.

More steps on the road towards a Lockerbie trial

[What follows is the text of an Associated Press news agency report issued on this date in 1997:]

UN officials are heading for Scotland to analyze whether suspects in the bombing of Pan Am Flight 103 can receive a fair trial there.

UN spokesman Fred Eckhard told reporters Tuesday that the three UN officials will arrive in London Wednesday and travel to Lockerbie, Scotland, to visit prison and court facilities.

Britain invited Secretary-General Kofi Annan to send representatives to Scotland after Arab and African countries complained that two Libyans indicted in the bombing could not receive a fair trial in Scotland or the United States.

The plane exploded in the air and crashed near Lockerbie, Scotland, in 1988, killing 270 people.

But Libya has refused to extradite the suspects, demanding the trial be held in a neutral country. The UN Security Council banned international flights to and from Libya in 1992 to demand that Libyan leader Moammar Gadhafi surrender the pair.

But diplomats of several countries, including Russia, have said they believe it is time to find a solution and end the sanctions against the Libyan regime.

Also Tuesday, Eckhard said Annan had agreed to send a UN delegation to Libya to look into the effects of the aviation sanctions.

[RB: It was only on 24 August 1998 that the governments of the United Kingdom and the United States at last accepted the solution of a neutral venue trial to be held under Scots Law that had been agreed to in writing by the Libyan Government and the Libyan defence team on 12 January 1994. The Western media, of course, throughout supinely punted the UK/US line that the delay in bringing Megrahi and Fhimah to trial had been attributable to Libya.]

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.