The law's delays

[On this date in 2009 the first stage of Abdelbaset Megrahi’s second appeal was concluded. Here is what the Lord Justice General (Lord Hamilton) said at the conclusion of the proceedings:]

The court is much obliged to counsel on either hand for the careful and comprehensive submissions which have been made at this stage of the appeal. We will now, of course, require to give these submissions detailed and careful consideration. A question will arise as to whether it is appropriate to decide grounds 1 and 2 at this stage or, alternatively, to defer that decision until we have heard argument on other grounds, which are or may be closely related to them.

We appreciate that having regard to, among other things, the appellant's state of health there will be concern that we deal with these matters as expeditiously as possible. But having regard to their importance to all concerned, we cannot and must not rush to judgment.

Time has been set aside towards the end of this term for a procedural hearing in relation to further grounds of appeal. And in terms of the interlocutor of 18 March of this year, days were set aside in the week commencing 29 June for that purpose. For reasons which it is not necessary to go into, we intend to change that date or dates to dates in the week following that, that is the week commencing 6 July. We expect that by that time we will have reached a decision as to whether or not we should decide grounds 1 and 2 at this stage and to be able to intimate which course of action, either deciding them at this stage or deferring them, we have decided upon.

But by this time, we shall simply continue the appeal to the first of the dates which are now substituted for the procedural matters which we have referred to, that is to Tuesday 7 July of this year.

[RB: In the light of the stately pace which this statement demonstrates that the court thought appropriate in an appeal brought by a man with a terminal illness, I take leave to reproduce a comment that I had made on this blog on 26 October 2008:]

[T]he delay in bringing Mr Megrahi’s current appeal to the hearing stage has been appalling. Had a measure of urgency been shown, it is entirely conceivable that the appeal could have been over before now and the appellant back with his wife and children in his own country, a free man. The SCCRC had his case under consideration for more than three years before referring it back to the High Court. The submission made to them was, admittedly, a long and detailed one. But the issue of the trial court’s unreasonable findings ... is a very simple and straightforward one and required virtually no investigation other that a perusal of the relevant portions of the transcript of evidence. If the SCCRC decided early in its deliberations that the case was going to have to be referred back on this ground – and it is difficult to believe that it did not – then delaying taking that step for three years is hard to justify.

Then there is the delay that has occurred after the SCCRC referred the case to the High Court in June 2007.

More than sixteen months have passed since then. More than thirteen months have passed since the first procedural hearing in the new appeal was held. More than ten months have passed since the appellant’s full written grounds of appeal were lodged with the court. Why has no date yet been fixed for the hearing of the appeal? Why does it now seem impossible that the appeal can be heard and a judgement delivered by the twentieth anniversary of the disaster on 21 December 2008?

The answer is simple: because the Crown, in the person of the Lord Advocate, and the United Kingdom Government, in the person of the Advocate General for Scotland, have been resorting to every delaying tactic in the book (and where a particular obstructionist wheeze is not in the book, have been asking the court to rewrite the book to insert it). These tactics include, to name but a few, raising difficulties about allowing the appellant access to productions used at the original trial; seeking to overturn previous appeal court decisions on the scope of the appeal in SCCRC references; and claiming public interest immunity on “national security” grounds in respect of documents which have been in the hands of the Crown for more than twelve years and which have been seen by the SCCRC. The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done little, if anything, meaningful to curb it.

Overweening arrogance best illustrated in the Lockerbie fiasco

[What follows is the text of a letter from Dr John Cameron published in today’s edition of The Scotsman:]

I suspect Nicola Sturgeon’s rejection of the call for judges to declare details of their finances in a register of interest will be recalled as her first major misstep as First Minister.

MPs, MSPs, councillors and board members of public bodies must register outside financial interests and judges, sheriffs and justices of the peace should be brought into line.

Scotland leading judge, Lord Gill, argued that acquiescing would “erode public confidence in the judiciary” – whereas most of the general public would argue the very opposite.

The Scottish judiciary has an overweening arrogance best illustrated in the Lockerbie fiasco and it is time they were told that rules which apply to the human race, apply also to them.

[A letter from Iain McKie published yesterday making a similar point can be read here.]

Test of post-Lockerbie airline security

[What follows is an excerpt from the Wikipedia article on Dr Jim Swire:]

On 18 May 1990, Swire took a fake bomb on-board a British Airways flight from London's Heathrow airport to New York's JFK* and then on a flight from New York JFK to Boston to show that airline security had not improved; his fake bomb consisted of a radio cassette player and the confectionery marzipan, which was used as a substitute for Semtex. Some American family members asked Swire to keep the news of the stunt quiet; it became public six weeks later. Susan and Daniel Cohen, parents of Pan Am Flight 103 victim Theodora Cohen approved of the plan, while some other family members of American victims did not.**

* Fineman, Mark (6 July 1990). "TERRORISM / ONE MAN'S CRUSADE : Fake Bomb Shows Hole in Security : The father of one of the victims of the Pan Am 103 tragedy demonstrates that it could happen again". Los Angeles Times.

**Cohen, Susan and Daniel. "Chapter 16." Pan Am 103: The Bombing, the Betrayals, and a Bereaved Family's Search for Justice. New American Library. 2000. 225.

The disgrace that is Lockerbie

[What follows is the text of a letter from Iain McKie published in today’s edition of the Sunday Herald:]

Paul Hutcheon's article highlights my belief that judges have an inappropriate power and influence in relation to how the legal system operates that can be a barrier to receiving justice in Scotland (First Minister rejects call for register of judges' interests, News, May 10).

Similar issues arise with the Lord Advocate, who remains a power almost without limits.

I see the First Minister's decision not to support a register of judges' interests as philosophically and constitutionally wrong. This political reticence to become involved in judicial matters harks back to the dim and distant past when properly the independence of the judiciary and Lord Advocate had to be protected from political interference.

Unfortunately this has morphed into a complete failure by our elected representatives to hold these authorities to account. With few exceptions they have washed their hands of their duty to ensure that the exercise of power is fair and proportionate.

Perhaps all of this is embodied in the disgrace that is Lockerbie where for over 26 years a whole system has sat on its hands and failed to help right a massive wrong. In essence the promise and hopes inherent in the SNP's clean sweep in Scotland is that things will be different. This stands for justice as well as the economy and it is to be hoped that our politicians are listening at last and can be educated and persuaded in this regard.

Malta could have done more to reject Lockerbie claims

[This is part of the headline over an article by Caroline Muscat published in the Maltese newspaper The Sunday Times on this date in 2009. It reads as follows:]

The man convicted of the Lockerbie bombing is not guilty as charged and there is no convincing argument for Malta's involvement in the terrorist act, according to the United Nations' appointed monitor of the trial in the Netherlands.

Hans Koechler, who was handpicked by the then UN Secretary-General Kofi Annan to monitor proceedings, told The Sunday Times: "I never really understood why the government of Malta did so little to reject these allegations and to defend the integrity of the country's civil aviation system."

Twenty years after the bombing, the government has gone no further than saying that it is monitoring proceedings of the second appeal. Air Malta did not comment.

Malta was implicated in the terrorist act because the prosecution had argued that Abdel Basset Al-Megrahi and Al-Amin Khalifa Fahima had placed the bomb on an Air Malta aircraft before it was transferred at Frankfurt airport on board the doomed Pan Am flight 103A.

The flight went to London Heathrow and was bound for New York's JFK airport before exploding over Lockerbie in Scotland an hour into the journey on December 21, 1988. All 259 people on board died as well as 11 locals on the ground.

The trial at Camp Zeist in the Netherlands had led the Scottish judges to conclude in 2001 that Mr Al-Megrahi was guilty. He was jailed for life while the other defendant was released.

In his report after the verdict, Dr Koechler had concluded that a miscarriage of justice may have occurred. Several years on, he stands by his conclusions: "The court did not come up with any convincing argument that Mr Al-Megrahi is the one who bought the clothes at the shop in Malta and that the 'bomb suitcase' was loaded at Luqa Airport."

Dr Koechler expressed doubt that Mr Al-Megrahi's ongoing appeal, which started on April 28, could be fair and impartial because of the "outright interference of the British government trying to withhold certain sensitive evidence from the defence".

He said political expediency had guided the original verdict, saying it reflected the political considerations related to the foreign policy interests of the involved states at that time.

One of Malta's leading lawyers, who had formed part of the legal team in the defence of the two Libyan suspects, also believes Mr Al-Megrahi is innocent.

Emmanuel Mallia told The Sunday Times: "I personally know the accused and have always firmly believed in his innocence."

Mr Al-Megrahi's appeal was ordered by the Scottish Criminal Cases Review Commission in 2007, after a four-year investigation came to the conclusion that a "miscarriage of justice" may have occurred.

Dr Mallia would not enter into the merits of the case because it is still sub judice. But he said his personal view was that the verdict was flawed.

"Having examined the judgment of the court at Camp Zeist and being aware of the salient evidence produced in the case by the prosecution, I feel that the evidence could never have amounted to guilt of the accusation according to law," Dr Mallia said.

He said the prosecution lacked reliable evidence that could prove guilt beyond reasonable doubt: "Although there were a lot of issues which could give rise to suspicion, anything argued on the basis of suspicion may lead to conjecture but not proof. Even if considering circumstantial evidence, we know that such evidence can mislead and, in order to rely upon it, it has to lead to one direction."

Some argue that at the early investigation stage Malta was perhaps too compliant.

"The government gave access to the Scottish and American investigators to interview people and take any action deemed necessary. Some have argued that things may have been done differently with the Malta police having more direct control of the investigation".

A former Scottish judge regarded as the architect of the Lockerbie trial, Robert Black, also told The Sunday Times last week that there was never any evidence that the bomb left from Malta.

On his blog this week, Prof Black contested arguments made by the prosecution at the Court of Criminal Appeal in recent days that Mr Al-Megrahi's trip to Malta with a false passport the day the bomb was planted, and his departure the day after, was a link to the commission of the offence.

"As regards the coded - not false - passport, it is of relevance only if the bomb actually started from Malta, which is a finding the defence have strongly challenged in the appeal," Prof Black said.

The hearing continues despite rumours that the 57-year-old former Libyan intelligence officer may choose to drop his appeal and go home because of a recent prisoner transfer agreement between the UK and Libya.

Mr Al-Megrahi is suffering from prostate cancer and can choose to die at home. But dropping his appeal will leave him a condemned man and mean that Malta will remain implicated in one of the worst terrorist acts in aviation history.

According to Dr Koechler, it is "absolutely essential" that the appeal goes ahead: "The Scottish authorities can reconcile the imperatives of the rule of law and of humanity and grant the appellant compassionate release while the appeal goes on... In a situation where there are serious doubts whether he is guilty as charged, and where the public is confronted with an increasing number of shocking revelations about the mishandling of the case by the judiciary, tampering with evidence, and so on, it is appropriate to make such a step."

Dr Koechler believes the British Parliament should mandate an independent public investigation into the Lockerbie case.

"The international public, including the people of Malta, deserve to know the truth - the full and uncensored truth - about the chain of events that led to the explosion of the American jetliner over Lockerbie."

Questioning the official narrative

[The following is excerpted from an article published in today’s edition of The Herald:]

Why is it, James Robertson wonders, that Scottish authors have been so drawn to the themes of hidden agendas and double lives?

Robert Louis Stevenson wrote about this. Later, so did John Buchan. Later still, so did crime writer Frederic Lindsay - and Robertson himself.

These themes do seem to have a timeless fascination. They are not, of course, confined to Scots-born writers; but there is something in them that has plainly appealed to writers for a very long time.

The reason all of this has come up now is that Robertson, one of our most gifted and garlanded novelists, is giving an intriguing talk on this very subject next Friday. It has the fitting title of The Blanket of the Dark.

"Is this peculiarly Scottish or not?" he asks. "I don't think we're any more susceptible to leading double lives than anybody else in the world. Nevertheless, it is a theme that runs through quite a lot of our literature.You can even see it in James Hogg. It does seem to crop up time and again." (...)

Step forward Robert Louis Stevenson. "Jekyll and Hyde is the absolute prototype for books about double-dealing, about people leading one life on the surface but another one when night falls."

This is a theme that has appealed to Robertson himself over the years, and which he has explored in novels such as his "beautifully plangent" (so ran The Herald's accolade) work from 2013, The Professor of Truth.

"That was based on the Lockerbie disaster but I wanted to try to distance it from the real event and look at some of the bigger issues that always attach to major stories like that. One of the things I found fascinating about Lockerbie is how there's a narrative that has been officially presented through the investigation and the trial. Increasingly, people have questioned whether that is a valid narrative. Purely as a writer, because that's what I do, I'm interested in the whole question of narratives and how they become fixed, or distorted, and how they are challenged. In my big novel about Scottish politics, And the Land Lay Still, there is a subterranean dimension as well as a surface one." (...)

The Blanket of the Dark: Truth and Lies in Real and Imagined Scotland; Informatics Forum, Edinburgh University, Friday, [22 May] 5.30pm. Website: http://www.spyweek.llc.ed.ac.uk

"A new era in US-Libya relations"

[On this date in 2006, The New York Times reported US Secretary of State Condoleezza Rice’s announcement that Libya was to be removed from the list of state sponsors of terrorism and that full diplomatic relations were to be restored. Her statement contained the following:]

We are taking these actions in recognition of Libya's continued commitment to its renunciation of terrorism and the excellent co-operation Libya has provided to the United States and other members of the international community in response to common global threats faced by the civilized world since September 11, 2001.

Today's announcements are tangible results that flow from the historic decisions taken by Libya's leadership in 2003 to renounce terrorism and to abandon its weapons of mass destruction programmes.

As a direct result of those decisions we have witnessed the beginning of that country's re-emergence into the mainstream of the international community.

Today marks the opening of a new era in US-Libya relations that will benefit Americans and Libyans alike. (...)

For Libya, today's announcements open the door to a broader bilateral relationship with the United States that will allow us to better discuss other issues of importance.

Those issues include protection of universal human rights, promotion of freedom of speech and expression, and expansion of economic and political reform consistent with President Bush's freedom agenda.

Lord Advocate's response to Justice Committee

From this blog on 21 April 2015:

“At this morning’s meeting of the Scottish Parliament’s Justice Committee it was decided (1) to keep open Justice for Megrahi’s petition (PE1370) calling for an independent inquiry into the conviction of Abdelbaset Megrahi; and (2) to write to the Lord Advocate enquiring how the Crown Office proposes to deal with the forthcoming Police Scotland report on JFM’s allegations of criminal misconduct on the part of police officers, prosecutors and Crown forensic scientists in the Lockerbie investigation, prosecution and trial. This arises out of the suggestion made on this blog that a special prosecutor or independent counsel might be required, in the light of the Lord Advocate’s publicly expressed views about the merits of JFM’s allegations and the character of JFM members.”

From this blog on 26 April 2015 (from The Sunday Times):

“Scotland’s lord advocate has signalled for the first time that he will play no role in prosecutions linked to the Lockerbie bombing if a fresh police investigation unearths evidence of criminality by Crown Office staff.

“Allegations being examined by Police Scotland include claims that some Crown Office staff concealed or tampered with evidence to ensure Libya took the blame for the 1988 atrocity.

“Last week, members of the Scottish parliament’s justice committee declared support for the appointment of an independent prosecutor to ensure public confidence in further investigations and agreed to seek assurances from the lord advocate that he would play no part in fresh prosecutions. Concerns were also raised that Frank Mulholland, the lord advocate, cannot be objective and impartial because he has expressed confidence in the guilt of Abdelbaset Ali al- Megrahi, who was convicted of the bombing, and the integrity of the case against him.

“‘Frankly, some of the lord advocate’s comments during hearings on the petition were not helpful,’ said Christine Grahame, the committee’s convener. ‘That may in some ways colour one’s feeling of being content that there is — I hesitate to say — an independence of spirit.’

“John Finnie, an independent MSP, added: ‘When the police come to submit their report, they are, as things stand, submitting it to someone who has already prejudged the situation with intemperate remarks.’ Finnie said it would be ‘interesting to hear the lord advocate’s views’ on the merits of an independent prosecutor.

“On Friday, the Crown Office said moves had already been made internally to appoint an independent prosecutor. ‘The lord advocate already anticipated this as an issue some time ago and decided it would be improper for him to personally deal with the matter. Arrangements have already been put in place for an independent crown counsel, who has not been involved in the Lockerbie case, to deal with this matter if and when the need arises.’”

The Lord Advocate’s official reply to the convener of the Justice Committee is a letter dated 8 May 2015, twelve days after the report in The Sunday Times. This now appears on the Justice Committee’s website. Its only substantive paragraph reads as follows:

“I had anticipated this as a potential issue some time ago given my involvement in the investigation and the nature of the allegations which have been made.  Arrangements were therefore put in place for an independent Crown Counsel who has not been involved in the Lockerbie case to deal with this matter if and when the need arises.”

The comment that I made at the end of the blogpost of 26 April continues to apply.

"The destruction of Flight 103 may well have been preventable"

[On this date in 1990, the Presidential Commission on Aviation Security and Terrorism (PCAST) presented its report to President George H W Bush. The full report can be read here. A report in The Washington Post the following day reads in part:]

A presidential commission yesterday placed much of the blame for the 1988 terrorist bombing of Pan Am Flight 103 on a "seriously flawed" aviation security system, beginning with inept and confused Pan Am security at Frankfurt and London and compounded by the Federal Aviation Administration's failure to enforce its rules.

"The destruction of Flight 103 may well have been preventable," the commission said. (...)

The commission found fault throughout the government, from the FAA to the State Department, which it blamed for failing to adequately aid and inform the families of the victims. Only the US intelligence system, including the CIA, did its job adequately, the commission said. (...)

The commission said that for many months before and after the crash, Pan Am failed to follow written federal security guidelines, employed poorly trained security personnel and generally ran a lax security apparatus in Frankfurt and London. It said that despite $630,000 in fines, problems were not cleared up until 10 months after the crash when [Federal Aviation Authority administrator James B] Busey had a face-to-face meeting with Pan Am's new chief executive officer.

"It is astonishing . . . that Pan Am permitted those problems and others to continue at that level month upon month after the disaster," the report said.

The report said the commission could not determine exactly how the bomb got onto the plane, although it said there is ample evidence that an "extra" unaccompanied bag was placed on the plane at Frankfurt. A container of luggage was also left unguarded on the tarmac at Heathrow Airport in London for about 30 minutes.

The commission called the extra unaccompanied bag "the 13th bag," because an X-ray operator's list of parcels delivered from other airlines totaled 13, while other records could trace only 12 of them to passengers.

The report also did not identify any individual or country responsible for the bomb, apparently Semtex explosive hidden in a small Toshiba radio. A criminal investigation continues, and no charges have been filed.

However, [Commission chair, former Secretary of Labor Ann] McLaughlin indicated the commission may know more than it is making public. She said the panel delivered a private letter to President Bush yesterday morning with his copy of the report. She said the letter contained more specifics about dealing with terrorism but refused to elaborate.

[RB: The current president of US relatives’ organisation Victims of Pan Am Flight 103 Inc, Frank Duggan, was on the staff of the Commission, in charge of family liaison.]

"We should be investigating whether crucial information was withheld"

[Three years ago today, the leader of the Liberal Democrats in Scotland called for an investigation into the withholding from the Lockerbie trial court by the Crown of information relevant to Abdelbaset Megrahi’s defence. An article in Scottish lawyers’ magazine The Firm reads in part:]

The Liberal Democrat leader at the Scottish Parliament, Willie Rennie, has today called for an investigation into claims crucial information was withheld from the criminal trial of Abdelbaset Al Megrahi.

His statement came in response to remarks from UK Prime Minister David Cameron, Labour justice spokesman Lewis Macdonald and Scottish Conservative chief whip John Lamont who expressed negative views that Mr Megrahi had not yet deceased.

“However evil Megrahi is, however badly the SNP handled his release and however long he has survived, rather than obsessing about whether a dying man is dead yet we should be investigating whether crucial information was withheld from the trial,” Rennie said.

A petition is currently live before the Parliament’s petitions committee calling for an inquiry into the debacle. [RB: The petition remains live in the Scottish Parliament.]

Jim Swire to speak at Major Incidents Conference

[What follows is an excerpt from an item posted today on Lockerbietruth.com, the website of Dr Jim Swire and Peter Biddulph:]

Jim Swire is to speak at a national conference Major Incidents and Beyond at the Queen Elizabeth Hospital Birmingham on Wednesday 20th May. He will open his address with a short extract from our book Lockerbie. This is the basis of a feature film directed by six-time Oscar nominated director Jim Sheridan.

The event will address topics surrounding acute trust involvement during a major incident such as recovery-phase post incident, personal accounts and psychological effects following an incident, security arrangements, and first-hand accounts of inquests and public inquiries.

This is a full day event for all those involved in emergency planning, working in emergency departments and those with a particular interest in major incidents.

The dodgy timer fragment sees the light of day

It was (apparently) on this date in 1989 that Dr Thomas Hayes of the Royal Armaments Research and Development Establishment (RARDE) discovered amongst Lockerbie debris a fragment of circuit board embedded in a shirt collar. This became PT35(b) -- the notorious dodgy timer fragment. The story of the discovery and how it was recorded is narrated an article headed Page 51 and its Environs on Caustic Logic’s blog The Lockerbie Divide. The dialogue between Caustic Logic and Rolfe in the comments following the blogpost is also a mine of information.

Mrs Horton's mysterious manual

[What follows is an excerpt from a report on proceedings at the Lockerbie trial published on this date in 2000 on the BBC News website:]

Gwendoline Horton, a witness, described how she helped gather debris in the fields near her home in Northumberland.

Among her finds was what looked to be "a document relating to a radio cassette player", she told the court.

Ex-police constable Brian Walton, to whom Ms Horton handed in the item, identified it as "pieces of an instruction handbook".

Asked what had struck him about the object, Mr Walton said: "It had tiny bits of singe on some of the edges of the pieces."

[RB: Mrs Horton’s find was both significant and mysterious. Read all about it on Caustic Logic’s blog The Lockerbie Divide here and here.]