Keeping timer documents secret

[What follows is excerpted from a report published on this date in 2008 in the Daily Record:]

Secret documents at the centre of a costly courtroom row are unlikely to help Libyan agent Abdelbaset al-Megrahi overturn his conviction for the Lockerbie bombings, it was claimed on Wednesday.

Al-Megrahi, 56, is serving a minimum of 27 years of a life sentence for bringing down a United States-bound Pan Am flight in December 1988 with the loss of 270 lives – regarded as Scotland’s worst mass murder.

His claims of innocence have been referred to appeal judges by the Scottish Criminal Cases Review Commission which investigates possible miscarriages of justice.

The SCCRC say that before the trial started al-Megrahi’s defence team should have been shown papers which an unknown foreign government handed over to UK authorities – believed to be about the bomb’s electronic timer.

But defence lawyers cannot get their hands on the documents because the Westminster Government say that revealing their contents will harm foreign relations and hamper the war on terror.

The Court of Criminal Appeal in Edinburgh is now locked in a three day debate about how to conduct a hearing into whether or not the documents can be kept secret under a “public interest immunity certificate”.

As well as the three appeal judges there are nine advocates in the Edinburgh courtroom – five of them QCs.

Advocate General Lord Davidson of Clova QC – who represents Westminster of legal issues in Scotland – has suggested a procedure never before seen in Scotland.

Judges would be allowed to read the secret papers then decide – behind closed doors – whether they should be handed over.

But al-Megrahi’s lawyers would be kept out and replaced by a security-vetted advocate to try to ensure fair play.

Today it was the turn of advocate depute Ronald Clancy QC to give the view of prosecutors.

He told the judges in Edinburgh that Lord Advocate Elish Angiolini QC, responsible for criminal prosecutions in Scotland, would hand over the documents if Foreign Secretary David Miliband had not objected.

“They are not likely to be important to any undermining of the Crown case or cast doubt on it”, he said.

Mr Clancy also suggested that a possible way round the difficulty might be for defence lawyers to see an edited version of the controversial documents.

Margaret Scott QC, senior counsel for al-Megrahi, insisted that without sight of the document she could not properly prepare for the Libyan’s appeal – which is still months away, at least.

“Al-Megrahi’s position here is that he wants disclosure of these documents in order to exercise his right of appeal,” she said.

The papers were “material” because the SCCRC had said so, she added.

Ms Scott also criticised the proposals for a special security-vetted lawyer to encroach on her job.

“My main concern is any proposed procedure which determines the substance of the appeal taking part in the absence of al-Megrahi or his defence counsel”, she said.

[RB: Will we have to go through all this again if the current application to the SCCRC results in a reference of the case back to the Appeal Court, but with Richard Keen QC (whose appointment as Advocate General for Scotland was announced yesterday) seeking to keep the documents out of the hands of the lawyers arguing the appeal on behalf of the late Abdelbaset Megrahi?]

The Blair-Gaddafi deal in the desert

[It was on this date in 2007 that the “deal in the desert” was concluded between Prime Minister Tony Blair and Colonel Gaddafi at a meeting in Sirte. This was embodied in a “memorandum of understanding” that provided, amongst other things, for a prisoner transfer agreement to be drawn up. In later years UK Government ministers, particularly Justice Secretary Jack Straw, sought to argue either (i) that the prisoner transfer element of the deal was not intended to apply to Abdelbaset Megrahi or (ii) that if it was intended to cover him, all parties appreciated that the decision on transfer would be one for the Scottish Government not the UK Government. Here is what I wrote about that on this blog:]

According to Jack Straw "the Libyans understood that the discretion in respect of any PTA application rested with the Scottish Executive." This is not so. In meetings that I had with Libyan officials at the highest level shortly after the "deal in the desert" it was abundantly clear that the Libyans believed that the UK Government could order the transfer of Mr Megrahi and that they were prepared to do so. When I told them that the relevant powers rested with the Scottish -- not the UK -- Government, they simply did not believe me. When they eventually realised that I had been correct, their anger and disgust with the UK Government was palpable. As I have said elsewhere:

"The memorandum of understanding regarding prisoner transfer that Tony Blair entered into in the course of the "deal in the desert" in May 2007, and which paved the way for the formal prisoner transfer agreement, was intended by both sides to lead to the rapid return of Mr Megrahi to his homeland. This was the clear understanding of Libyan officials involved in the negotiations and to whom I have spoken.

"It was only after the memorandum of understanding was concluded that [it belatedly sunk in] that the decision on repatriation of this particular prisoner was a matter not for Westminster and Whitehall but for the devolved Scottish Government in Edinburgh, and that government had just come into the hands of the Scottish National Party and so could no longer be expected supinely to follow the UK Labour Government's wishes. That was when the understanding between the UK Government and the Libyan Government started to unravel, to the considerable annoyance and distress of the Libyans, who had been led to believe that repatriation under the PTA was only months away.

“Among the Libyan officials with whom I discussed this matter at the time were Abdulati al-Obeidi, Moussa Koussa and Abdel Rahman Shalgam.”

Lockerbie, Iran and USS Vincennes

[On this date in 2008, an article by Dr Ludwig de Braeckeleer headed Former Iranian President Blames Tehran for Lockerbie was published by OhmyNews International. The first few paragraphs read as follows:]

In an interview conducted on May 16, Abolhassan Bani-Sadr, the former president of the Islamic Republic of Iran, told me that Tehran, not Libya, had ordered the bombing of Pan Am 103 in revenge for the downing of an Iranian civilian airliner by the USS Vincennes a few months earlier.

On July 3, 1988, the navy cruiser USS Vincennes, also known as "Robocruiser," shot down Iran Air Flight 655 over the Persian Gulf. The civilian airliner was carrying mostly Muslims on their pilgrimage to Mecca -- 290 died, most Iranians.

According to Bani-Sadr, in the immediate aftermath of the Lockerbie tragedy, [Ali Akbar] Mohtashami-Pur, the then minister of the interior, acknowledged in an interview that he had contracted Ahmad Jibril, the leader of a Palestinian organization [PFLP-GC], to bomb an American airliner. The interview was scheduled for publication the following day. Hours before distribution, the newspaper was shutdown.

[The remainder of the long and detailed article consists of the fruits of Dr De Braeckeleer’s search for evidence supporting or rebutting Bani-Sadr’s contention. He found quite a lot of the former and not much of the latter. The article merits close attention.]

From Birmingham to Lockerbie?

[This is the headline over an item posted today on Lockerbietruth.com, the website of Dr Jim Swire and Peter Biddulph:]

Jim Swire and relatives of some of the Lockerbie victims are pursuing a posthumous third appeal on behalf of Abdelbaset al-Megrahi. They believe that he suffered a miscarriage of justice.

In June 2014 - almost one year ago - they requested that the Scottish Criminal Cases Review Commission (SCCRC) ask the Scottish appeal court to rule on whether it is authorised to continue an investigation into the trial findings. The SCCRC requires a ruling on whether the relatives have “a legitimate interest”.

While in prison Al-Megrahi was visited by many well-wishers. In John Ashton's 2012 book Megrahi: You are my Jury Al-Megrahi tells of visits by Paddy Joe Hill, one of the "Birmingham Six" wrongly convicted for the 1974 IRA Birmingham pub bombings. He says of Hill, "He was the visitor who best understood my plight".

Megrahi explains: "Hill knew better than anyone the innate reluctance of the criminal justice system to right its wrongs. Following their first unsuccessful appeal, the Six attempted to press charges against the West Midlands Police. The case eventually reached the High Court and was rejected by a panel of three judges led by England's most senior civil judge, the Master of the Rolls, Lord Denning.

"In one of the most notorious judgements of recent times he opined: 'Just consider the course of events if their [the Six's] action were to proceed to trial... If they failed it would mean that much time, money and worry would have been expended by many people to no good purpose.'

"'If they won ... [it would mean] that the convictions were eroneous. That would mean that the Home Secretary would either have to recommend that they be pardoned or to remit the case to the Court of Appeal. That [would be] such an appalling vista that every sensible person would say "It cannot be right that these actions should go any further."'"

Baset Al-Megrahi continues: "By the time I was convicted 21 years later, no judge would dare so nakedly place the reputation of the justice system before the interests of justice. But the common ancestry of judicial myopia was all too obvious."

Let us hope that Mr Al-Megrahi is correct and that the sentiments expressed by Lord Denning will never be allowed to influence the current application for a third, posthumous appeal.

National security and security-vetted advocates

[What follows is taken from a report published on the BBC News website on this date in 2008:]

A plea has been made to Lockerbie bombing appeal judges to hold a hearing to discuss a confidential document behind closed doors.

The Advocate General has suggested a security-vetted advocate could represent Abdelbasset Ali al-Megrahi in place of his usual legal team.

The UK Government claims releasing the document would harm national security.

However, Al Megrahi's lawyers have said it could assist his appeal against his conviction for the 1988 atrocity.

The Advocate General - who represents the UK Government - has lodged a public interest immunity plea to keep the document secret.

A three-day procedural hearing at the Appeal Court in Edinburgh is now meeting to decide how to address the issue.

The court previously heard Foreign Secretary David Miliband had signed the public interest immunity certificate.

Judges were told he believes releasing the secret document would cause "real harm" to the national interest.

Advocate General Lord Davidson [of Glen Clova] QC told the court there should be a public interest immunity hearing, and he suggested judges should have access to the document in advance of that hearing.

He said a special representative, if appointed, would be able to represent Al Megrahi's interests.

The Libyan's defence team have not yet given their views in the hearing but Lord Davidson said it appeared that they contest the use of a special representative in this case.

Al Megrahi was not present at the hearing in Edinburgh.

[RB: Incidentally, Prime Minister David Cameron has not yet appointed an Advocate General for Scotland in his new administration. The strong rumour is that it is to be Richard Keen QC who was senior counsel for Lamin Fhimah at the Lockerbie trial, subsequently Dean of the Faculty of Advocates and is currently chairman of the Scottish Conservative Party.]

UK Government rejects neutral venue Lockerbie trial scheme

[What follows is the text of a report published in The Herald on this date in 1994:]

Scottish Secretary Ian Lang yesterday rejected a plea by Tory MP Sir Teddy Taylor for the law to be changed to enable two Libyans suspected of carrying out the 1988 Lockerbie bombing to be tried abroad.

Sir Teddy (Southend East) said leading and respected Scottish advocates had stated clearly and publicly that a fair trial before a Scottish jury was simply not possible because of recent press coverage.

He added that the Libyan Government had said it willingly would send the two accused to any other country.

Sir Teddy urged: ''In fairness to the relatives of the victims of this appalling disaster, it would be better for the Government to consider legislation, for example for a trial in The Hague, so the truth on this dreadful issue could at last come forward, rather than the present situation where nothing is happening for years.''

Mr Lang replied: ''But the investigation took place under Scots law and the charges are being brought on that basis.''

He insisted there was no evidence to support the contention the Libyan Government would be any more amenable to holding a trial in any other country, even if that were possible, ''which would be extremely difficult in the circumstances''.

Mr Tam Dalyell (Linlithgow -- Lab) claimed the Lord Advocate had not taken account of all the evidence in the case, and accused the Crown Office of being ''a bit lazy''.

Mr Lang retorted: ''You persist in setting yourself up as some kind of amateur sleuth in this matter.''

He pressed Mr Dalyell to support the Lord Advocate and the Government ''in seeking to enable this trial to take place''.

[In January 1994, I had secured the agreement of the suspects’ Libyan lawyer and the Libyan Government to a neutral venue trial. This had not been made public, but was known to Teddy Taylor MP, Tam Dalyell MP, the United Kingdom Government and the Scottish Crown Office. It took more than four more years (and a change of government) before the UK eventually saw the light.]

Pan Am 103 and the mach stem effect

[What follows is excerpted from a report published on the BBC News website on this date in 2000:]

An air accident investigator has told the Lockerbie trial there was a significant mathematical error in the official report on the disaster.

In highly technical but potentially crucial evidence, Christopher Protheroe said he informed prosecution lawyers in a meeting on Monday that a complex formula used to calculate blast wave effects after an initial explosion had been incorrectly applied in the 1990 report.

He admitted that correct calculation of the so-called "mach stem" phenomenon would indicate that the bomb which destroyed Pan Am Flight 103 over Scotland went off closer to its fuselage skin than originally thought.

The effect is created when a bubble of super-heated gases expands violently after explosives are detonated.

The report by the UK's Air Accident Investigation Branch (AAIB) indicated that damage discernible in debris from the forward cargo hold showed that the distance would have been about 25 inches (63 cm).

On evidence on Thursday, Mr Protheroe said the distance, if calculated correctly, would be about 12 inches (30 cm).

The prosecution alleges that Abdel Basset al-Megrahi and Al-Amin Khalifa Fahima, working as Libyan intelligence agents, planted a bomb in an unaccompanied suitcase in Malta which was eventually loaded onto the doomed aircraft in London.

Earlier, Mr Protheroe held up a model of the jumbo jet, with red, green and yellow patches showing how the plane had disintegrated in mid-air. (...)

He described how the blast initially blew a 20 by 20 inch (50 cm) hole in the fuselage and created further "starburst fractures" and "petalling" of the plane's metal skin from the subsequent explosion of hot gases.

AAIB photographs produced in court of a partial three- dimensional reconstruction of the smashed plane showed clear evidence, Mr Protheroe said, of a "shatter zone" in the left front cargo bay almost directly under the second "A" in the Pan Am logo on the side of the jet's giant forward cabin.

The trial was adjourned again, this time to allow a baggage container from the aircraft to be brought into court.

Air accident investigators have reconstructed the metal container, which is too big to be brought through the courtroom doors.

It may have to be taken apart and rebuilt again in front of the three judges in a process which could take a whole day.

Pan Am 103: Libya and a case unclosed

[This is the headline over an article by Professor Paul Rogers published on the Open Democracy website on this date in 2012. The following are excerpts:]

The death on 20 May 2012 of Abdelbaset Ali Mohmed al-Megrahi, the only person convicted of the bombing of a passenger airplane over the Scottish town of Lockerbie on 21 December 1988, has been followed by calls for a renewed enquiry into the circumstances of and responsibility of the tragedy. The focus of these calls is thus very different from the controversy over al-Megrahi's release from custody by the Scottish government in August 2009 on medical grounds, for it relates to the murders of the 259 people on Pan Am 103 and the eleven townspeople who died in Lockerbie itself. (...)

The doubts over the case revolve around several areas, but at the outset it is worth bearing in mind two things:

* Abdelbaset Ali Mohmed al-Megrahi was one of two people tried for the attack; the other, Lamen Khalifa Fhimah, was cleared, released and returned to Libya

* Al-Megrahi's case was itself up for consideration by the Scottish Criminal Cases Review Commission in 2007 following the raising of issues about his conviction, a review process that ceased on his release.

But the core issue regarding the Lockerbie attack goes much further than details of legal proedure, important though these are. It concerns the question of Libyan involvement as a whole. This has been pursued by a number of people, most notably the families of some of the British passengers who were among the 270 people killed when Pan Am 103 exploded over Lockerbie.

A different scenario

Many press articles and broadcast documentaries have examined the background. A recent, detailed analysis is by Davina Miller in a leading academic security journal (see "Who Knows About This? Western Policy Towards Iran: The Lockerbie Case", Defense and Security Analysis, 27/4, December 2011). The intention of Miller's paper is not to reach a firm conclusion, but to use numerous sources (including United States and United Kingdom legal documents and intelligence-agency sources) to examine the argument that there is a convincing alternative narrative to the official one.

In the most compressed terms, the proposition at the heart of this narrative is that the attack was sponsored by Iran in retaliation for the deaths of 290 passengers and crew of Iran Air Flight 655 when this craft, an Airbus 300, was shot down in July 1988 over the Persian Gulf by the American guided-missile cruiser USS Vincennes.

The case does not claim that Iranian officials were directly involved in the Lockerbie bombing, but that they sponsored the Damascus-based PFLP-GC Palestinian paramilitary group to conduct the attack. This group both had the expertise and was known at the time to be working towards attacking western aircraft.

At first sight the idea seems far-fetched. After all, why would Libya surrender the two defendants for trial (in April 1999) and offer compensation of $2.7 billion to the bereaved families (in August 2003)? The counter-argument is that these moves were predicated on easing and even ending international sanctions, and that their timing was connected to Libya's effort to "come in from the (geopolitical) cold".

That aspect of the whole affair may still be problematic. But it has to be set alongside substantial problems with the case against al-Megrahi that Davina Miller analyses.

There are four elements involved:

* Luqa Airport in Malta, where the bomb was apparently put on a feeder flight, was regarded as a particularly secure airport and one that presented considerable difficulties for any individual or group that wanted to get a bomb onto a plane

* Al-Megrahi was identified as buying clothing in Malta, fragments of which were found among the remains of the suitcase containing the bomb; but there were serious doubts about the reliability of the identification

* Al-Megrahi used a false passport in Malta, though this was apparently common practice among Libyan security people (al-Megrahi was actually known to the CIA as a Libyan "technical communications expert")

* There were some problems with the forensic evidence presented at the trial, evidence that became very much more problematic after it when some of the forensic personnel were discredited for reasons of incompetence.

If al-Megrahi was not responsible for the Lockerbie attack, this still leaves the question of why the investigation focused on Libya and so neglected the possibility of Iranian involvement.

The argument here is that the Lockerbie attack came at a time when there was a need to improve relations between the United States and Iran, because of the influence Tehran had on the release of western hostages being held by its Shi'a allies in Lebanon. To focus systematic blame for Lockerbie on the Iranians would, it is argued, have made release of the hostages much less likely.

Perhaps the strongest aspect of the whole matter relates to the starting-point: that one of the two people tried for the mass murder was found not guilty, and even al-Megrahi's guilt was sufficiently problematic for his case to be up for review.

The major political changes in Libya in 2011-12 make it possible that further evidence may emerge there, though the hatred of the current leadership for the Gaddafi regime may make them more than willing for him to continue to take the blame. The answer, instead, may actually lie in Tehran, and might in due course be confirmed, but there is little probability of that in the near future.

What remains is the unsatisfactory situation that has received fresh attention with al-Megrahi's death. But Davina Miller's investigation does present copious evidence of exactly why the situation is unsatisfactory. This at least makes it less likely that the matter will now fade from view.

"The ingredients that make up the prosecution’s case are rotten"

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

Gareth Peirce, the solicitor who overturned the miscarriage of justice convictions of the Guildford Four and Birmingham Six, has backed the call for a full inquiry into the Pan Am 103 debacle, and has directly criticised former Prime Minister Tony Blair’s role in shoring up “layers and layers of deceit” in the case.

Peirce, whose recently published book Dispatches from the Dark Side contains an essay entitled “The Framing of Al Megrahi” spoke to The Firm exclusively about the Pan Am 103 case and said that her involvement was prompted in part by her learning that the same discredited personnel whose flawed evidence was instrumental in convicting the Guildford and Birmingham convicts were also the providers of the key flawed evidence in the Megrahi case.

She has now criticised Scottish and UK Governments for “passing the parcel” over holding an inquiry, a matter the Scottish Government now concedes it has power to do, despite earlier denials. A petition for such an inquiry will be assessed by the new Petitions Committee.

“Because you have two countries involved, each is passing the parcel to the other,” Peirce told The Firm.

“The letter from the Scottish Government to the petitions committee says that in law, under the Inquiries Act, that Scotland cannot have an inquiry unless it is on a devolved issue, and the criminal justice system would be a devolved issue. But the letter adds that there are international implications, and therefore any inquiry should either be joint with England, or in England.

“There is a lot of truth in that, but as we saw with Megrahi’s return to Libya, Westminster claimed it was all the responsibility of Scotland, leaving Kenny MacAskill out on a limb. Yet, there is Blair busy with Gadaffi, desperately imploring Libya to make an application under the Prisoner Transfer Agreement. There are layers and layers of deceit here.”

Peirce says that the construction and maintenance of the discredited case against Megrahi has required active participation from those at all levels of the criminal justice system, with both tacit and overt support from the top of the political hierarchy.

“In the most notorious cases, everyone played their part, absolutely everybody,” she says.

“A big part of the blame lies within those who form the criminal justice system. It looks as if in the prosecution of the Lockerbie case, the defendants met the same fate, even to the extent of the same personnel featuring, in the person of the forensic scientists.”

The principal forensic analyst, Thomas Hayes, employed by the Crown to testify against Abdelbaset Al Megrahi was the same discredited analyst who was proven to have fabricated his evidence in the manufactured case against the Guildford Four.

He and Alan Feraday testified that the key forensic evidence, a fragment of circuit board, survived the explosion of Pan Am 103 and left traces of clothing connected to a shop in Malta. The owners of that shop provided the identification of Megrahi to the court, and were later found to have been paid in millions of dollars for their testimony. (...)

“That was the most shocking revelation to me,” Peirce says.

“Exactly the same forensic scientists who produced the wrongful conviction of Giuseppe Conlon, the Maguire family and of Danny McNamee, and had been stood down for the role they played. Yet here they were. Without them, there wouldn’t have been a prosecution, far less a conviction in Lockerbie.

“What shocked me most was that I thought that all that had been gone through on Guildford and Birmingham, the one thing that had been achieved was that nobody would be convicted again on bad science. But yet in the Lockerbie case, it isn’t just the same bad science, it is the same bad scientists.”

In July 2007 former MEBO employee Ulrich Lumpert swore an affidavit claiming that he had manufactured the crucial circuit board evidence and passed it to named individuals charged with investigating the Pan Am 103 case during 1989.

“All of this is screaming out for an inquiry. The ingredients that make up the prosecution’s case are really so rotten. They can’t and they shouldn’t sustain the weight of a presumed safe finding. You can see that they are utterly contaminated. They have no integrity. The forensic findings lack all the ingredients that should make them safe. The continuity of exhibits is all over the place. The only other pillar on which it is held up is this non-identification. It is just a catastrophe. The whole edifice is rotten, and it is astonishing it was ever stood up in the first place.”

[The long interview with Gareth Peirce in the same magazine can be read here.]

Tired old mantra

[What follows is a comment posted by me on this blog on 23 May 2012. I wouldn't today change a word.]

It is sad, but entirely in character, to see the Scottish Government and the Crown Office repeating the tired old mantra that the only proper way to address concerns over the Megrahi conviction is through a court of law. It is indeed true that the only way that the verdict can be overturned is through a further appeal. But we have clear evidence now of flaws -- indeed wrongdoing -- in the Lockerbie investigation and in the conduct of the prosecution. It is quite certainly not the case that only way in which these matters can be ventilated is in an appeal against the verdict. They are matters which have caused, or are capable of causing, public concern; and that is precisely the test that must be satisfied for an inquiry under the Inquiries Act 2005. It would be outrageous if police and Crown wrongdoing in a case could be exposed only if the accused person chose to exercise his right of appeal. Such wrongdoing is a matter of public concern and it is to address such concerns that the 2005 Act exists.  Moreover, such an inquiry could lead to a royal pardon (indeed royal pardons almost invariably flow from inquiries into cases in which there has been a conviction). A royal pardon does not overturn the verdict, which technically still stands, but it is an official recognition that the conviction was flawed. So there really is no constitutional or legal problem about asking for an inquiry into what went wrong in the investigation and prosecution of the Lockerbie case.