Every delaying tactic in the book

[What follows is an item posted on this blog on this date seven years ago:]

Justice delayed…

More than a year has passed since the Scottish Criminal Cases Review Commission referred Abdelbaset Megrahi’s case back to the Criminal Appeal Court on the basis that his conviction might have amounted to a miscarriage of justice. More than nine months have passed since the first procedural hearing in the new appeal was held. More than six 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 isn’t in the book, have been asking the court to rewrite the book to insert it). The judges on a number of occasions have expressed disquiet at the Crown’s dilatoriness; but have so far done nothing meaningful to curb it. This must end. The delay is becoming scandalous. The reputation of Scotland’s criminal justice system is being further tarnished in the eyes of the world.

And all the while a man languishes in Greenock Prison. I have never made any bones about my view that the conviction of Abdelbaset Megrahi on the evidence led at the Scottish Court in the Netherlands is the worst Scottish miscarriage of justice in the past one hundred years, indeed since the conviction of Oscar Slater. But even those who do not share my views, or who are neutral on the issue, would surely accept that the delay in bringing the new appeal to a hearing on the merits is beginning to look cruel and unconscionable.

It is up to the judges to start cracking the whip. The words of Francis Bacon in his essay “Of Judicature” are perhaps worth recalling:

“A judge ought to prepare his way to a just sentence, as God useth to prepare his way, by raising valleys and taking down hills: so when there appeareth on either side an high hand, … cunning advantages taken, combination, power, … then is the virtue of a judge seen, to make inequality equal; that he may plant his judgment as upon an even ground.”

[RB: It is perhaps worth pointing out that the delay that I was complaining about above followed the delay of three years and nine months between the submission of the application to the SCCRC and the Commission’s delivery of its decision.]

The Gauci "identifications"

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

The man convicted of the Lockerbie bombing has called in an American psychologist to help clear his name.

Abdelbasset al Megrahi, 56, claims an identity parade line-up was unfair and has challenged the way photos were shown to potential witnesses.

Prof Steve Clark, of the University of California, is said to be an expert on identification procedures.

At Edinburgh's Court of Criminal Appeal, Megrahi's defence team sought the right to show photos to Prof Clark.

Margaret Scott QC said it was "unprecedented" that she should have to ask judges to order the handover of the original photos.

Appeal judges are expected to hear further legal argument on the question next month.

Megrahi is currently serving life in jail for the 1988 atrocity, in which 270 people died.

He lost one appeal against conviction but the Scottish Criminal Cases Review Commission, which investigates possible miscarriages of justice, told the courts to look at the case again.

Megrahi's second attempt to overturn his conviction has led to a number of legal wrangles - including a long-running row about whether defence lawyers should be allowed access to secret documents.

[RB: The report that Professor Clark produced can be read here. A similar report by Professor Tim Valentine can be read here. The views on the case of the doyenne of the psychologists of eyewitness memory, Professor Elizabeth Loftus, can be read here. Their unanimous conclusion is that the “identification” of Megrahi by Tony Gauci is valueless.]

FIRM acts on call for Pan Am 103 public inquiry

[This is the headline over an article published on this date in 2009 on the website of Scottish lawyers’ magazine The Firm. It reads as follows:]

The letter below was sent to Justice Minister Kenny MacAskill today, following the FIRM’s online poll in which 86% of respondents called for a public inquiry into the Lockerbie airliner event:

15 July 2009

Kenny MacAskill

Cabinet Secretary for Justice

The Scottish Parliament

Edinburgh EH99 1SP

Dear Mr MacAskill,

FIRM magazine

The Firm magazine recently ran a poll of its readers, which found that 86% of respondents supported a public inquiry into the downing of Pan Am flight 103 over Lockerbie.

A copy of the news story which ran in the July issue of the Magazine is appended below for your reference, and a copy of the magazine is enclosed.

I can add that solicitors and advocates, in addition to the general public, have frequently and consistently expressed to me their despair at the damage that has been inflicted upon the law of Scotland by this case. No doubt you are already aware that the Scots legal system was once rightly regarded as among the best and most effective in the world. Regardless of its present efficacy, it is now regarded both domestically and (especially) internationally as an embarrassment, principally because of the damning reflection cast upon it by the passage of the Lockerbie case through it.

On behalf of the readers of The Firm -- including over 10,000 solicitors and 500 or so advocates who wish to see the reputation of Scots law restored and be certain the legal system they work for and within is a source of pride to them, and not of shame -- I am duty bound to ask for you to address their wishes for a public inquiry. Like them, it is my fervent wish that the legal system of Scotland, and those who work within it, can be certain that the law which is applied in their name is done so honourably and with full accountability, devoid of the stains and shadows that this case has thrown upon it.

The reason this case refuses to go away is simply because the answers provided by the judicial process have failed to satisfy the public interest on one hand, and those directly affected by these events on the other. Whilst one bad case cannot be fairly described as representative of all that goes on in Scots law, that one bad case is nevertheless a valid reflection of what our legal system is capable of achieving, and there is a large constituency of the public who are not satisfied with that conclusion.

For my own part, I will simply state that the first step to repairing any damage is to understand how it was caused. A full inquiry may begin to shed the necessary light that will allow repairs to be effected. In the interests of accountability, and on behalf of the readers of The Firm, I ask you to let me have your response and proposals for action.

As a journalist, I constantly remind myself of the words of the great Edward R Murrow, who noted that just because my voice is amplified to the degree that it reaches from one end of the country to the other, it does not confer upon me greater wisdom or understanding than I possessed when it reached only from one end of the bar to the other. What my journalistic reach does impose upon me however, is a correspondingly amplified duty to use my free speech responsibly, and I therefore cannot in good conscience offer any voice to the readers of The Firm if I do not take forward their legitimate concerns and, where necessary, act upon them. If I felt otherwise, I should simply publish cartoons instead. Justice must be done, even tho’ the heavens may fall. If you and I cannot do our best to achieve that, then both of us are in the wrong jobs.

I, and those 86%, look forward to hearing from you.

Yours sincerely,

STEVEN RAEBURN

Editor

-----------------

A poll of solicitors in Scotland calling for a full public inquiry into the Lockerbie incident has received Parliamentary backing and international support.

86% of respondents to the poll which ran during Abdelbaset Ali Mohmad al-Megrahi’s appeal called for the inquiry, which has been blocked since Labour took office in 1997, despite their pledge to hold one whilst in opposition.

Christine Grahame MSP, who has met Mr Megrahi several times in jail said there were many unanswered questions.

“I have said that if the appeal by Mr Megrahi is dropped then I would want to see a full public inquiry. That remains my position. I believe that Mr Megrahi should not have been convicted on the evidence that was led against him and that there appears to have been a miscarriage of justice. A public inquiry would go a considerable way towards resolving that if Mr Megrahi drops his appeal to make himself eligible for transfer back to Libya under the Prisoner Transfer Agreement signed by the UK Government.”

The UN appointed special observer Hans Kochler said the poll result was “encouraging,” and accused authorities of a scandalous cover up.

“A full public inquiry is long overdue. Since April 2002 I have repeatedly called for such a measure,” he said.

“So far, neither the British nor Scottish political and judicial establishment has shown any genuine interest in finding out the real causes of the Lockerbie tragedy. To the contrary, the course of justice has been obstructed in numerous instances. It is high time that the public demands its right to full and uncensored disclosure of all the evidence of the Lockerbie case and all facts of the scandalous cover-up and delaying tactics we have seen since the first appeal decision.”

Professor Robert Black, instrumental in brokering the Zeist trial said he “wholeheartedly supports the call for a public enquiry into the Lockerbie case.”

“There are so many grave concerns about the trial and the verdict that it is difficult to see how the Scottish criminal justice system can have its legitimacy restored without one,” he added.

Malta airport security explored at Lockerbie trial

[What follows is TheLockerbieTrial.com’s brief report on the proceedings at Camp Zeist on this date in 2000:]

Air Malta Manager Testifies

Wilfred Borg, Crown witness number 708, who was general manager for ground operations at Malta's Luqa Airport admitted that an uncleared suitcase could, theoretically, have been placed on board a flight leaving Malta.

Borg though, denied that records of unidentified luggage produced by the Crown indicated a violation of safety procedures.

The Crown will attempt to prove that the bomb suitcase was inserted in the baggage system at Luqa airport and sent as unaccompanied baggage to Frankfurt.

Borg was questioned by Advocate Depute, Alan Turnbull QC, about safety operations at Malta's Luqa airport.

Turnbull highlighted what he claimed were discrepancies in Air Malta's baggage loading logs on a number of flights in 1988 and asked Borg whether a person familiar with security procedures and access to loading areas could have breached his staff's safety checks.

Turnbull asked: "Would it have been possible in 1988 for someone with that knowledge and that access to deliberately have circumvented the checks you had in place?"

"Anything is possible. Whether it was probable is a different story," said Borg, who added that in every case an aircraft's captain had to make the final call on the safety of the aircraft.

Wilfred Borg is expected to continue his evidence on Monday.

[An accompanying commentary on the same website reads as follows:]

Airport Security Revelations

Luqa Airport became the focus of attention for investigators, much later then the original Maltese connection, which was around clothing found at Lockerbie.

Certain assumptions have been made regarding Malta's Luqa airport. It has been assumed by many that because Malta is a small country then it follows that their airport security would be lax.

The Crown will undoubtedly contend that all was not well with security at Luqa airport and this will assist their assertions that the suitcase containing the bomb was inserted at this point.

However our investigations have uncovered startling new facts which may counter this part of the Crown theory.

The arguments that may be used to counter this claim have come from a source which will surprise many. It comes directly from the US Federal Aviation Administration, the FAA.

In 1987, a year before the bombing of Pan Am 103, Pan Am made it known that they wished to operate a cargo service to and from Malta. In any instances, where an American flag carrier, such as Pan Am, makes it known that they wish to fly into an airport for the first time, the FAA is mandated to carry out inspections and assessments of the airport concerned.

Officials of the FAA carried out such an assessment of Luqa airport and their report will do nothing to further the Crown's case regarding lax security.

Sources from within the FAA, who spoke on condition of anonymity, have informed us that if they [the FAA] scored airports on a point system giving points out of ten, then their assessment of Luqa Airport would be 9 out of 10.

With the exception of some administrative recommendations, the FAA gave Luqa airport, Malta, a clean bill of health.

Hardly the picture of a small third world countries airport with poor security. Anyone familiar with Luqa airport during that period would know that armed soldiers from the Maltese armed forces carried out much of the security at the airport.

These revelations may have come to light earlier (we learned of this 3 months ago) had the FAA been more careful about their archived documentation.

Those same sources within the FAA confirmed to us that during 1993/1994, the FAA destroyed many assessments and inspections of European airports, covering the 1980s, including the report compiled on Luqa airport. Our source has stated that this destruction was done in error and not in any way to thwart the Lockerbie investigation. The Government of Malta was given a copy of the FAA report.

We make no assertions that the FAA, by destroying these reports, acted in any way maliciously and our sources within the FAA have spoken of the quality and level of co-operation extended to those involved in the legal preparations for this trial.

While the issues under examination today are specific to Air Malta and not to Luqa airport, there is undoubtedly a connection with regards to overall security procedures.

Coming hard on the heels of the debacle over Maltese witnesses refusing to testify, these latest revelations will hardly be good news for the Crown.

[The report of the day’s proceedings on the BBC News website can be read here.]

More from Switzerland

Various Swiss news media websites are running a SDA news agency report following up yesterday’s Neue Zürcher Zeitung article about the replacement of the special prosecutor appointed to investigate Edwin Bollier’s complaint about actions of the Swiss Federal Police in relation to the Lockerbie case. Here is a link to the report on the Blick website: Bundesanwaltschaft muss Anzeige zu Lockerbie-Attentat erneut prüfen. A French language version can be found here, and an Italian language version here. And here is a translation of the German version, courtesy of Google Translate: Attorney General must re-examine Lockerbie bombing.

The most spectacular miscarriage of justice in British legal history

[What follows is the text of a report headlined Jack Straw disappoints Lockerbie relatives on inquiry published in The Herald on this date in 2002:]

A full-blown public inquiry into the Lockerbie tragedy has been all but ruled out by Jack Straw.

The foreign secretary told MPs during a Commons debate: ''I explained to the families of the Lockerbie relatives that I did not see a case for a public inquiry into what had happened but I was going to look into whether other arrangements for scrutiny could be established.''

Last night Jim Swire, a spokesman for the victims' relatives, said Mr Straw's remarks ''do not appear to be in line with what he told us before''.

Dr Swire, whose daughter Flora was among the Lockerbie victims, told The Herald: ''It sounds abysmal. It looks as if we are not going to get a comprehensive independent inquiry. This raises all sorts of issues.''

The effective ruling out of a public inquiry is likely to be one of the key issues raised by the relatives when they meet Nelson Mandela in London tomorrow.

Last month the former South African president, who spent 27 years in jail, called for a new appeal after visiting Abdelbaset Ali Mohmed al Megrahi, the man convicted of the bombing, at Barlinnie jail in Glasgow. He said the Libyan was effectively being kept in solitary confinement and branded his conditions as ''psychological persecution''.

Tam Dalyell MP, the leading Lockerbie campaigner, whose question during the Commons debate prompted Mr Straw's rejection of a public inquiry, said that the questions surrounding Britain's worst terrorist atrocity ''have got to be answered''.

During the debate, the Labour MP for Linlithgow described the conviction and jailing of Megrahi as ''the most spectacular miscarriage of justice in not only Scottish but British legal history''.

He told MPs: ''There ought to be a public inquiry because, in this instance, adversarial court procedures were wholly inappropriate to the objective of finding the truth.''

Last night a Foreign Office source pointed out that it was not Mr Straw's decision alone on whether or not there should be a full public inquiry; it would be a cabinet decision. However, he accepted Mr Straw's remarks all but ruled out the prospect.

''Some form of scrutiny has not been ruled out. He will be saying more about this in due course,'' said the source, who declined to be more specific.

Lockerbie case rolls merrily on in Switzerland

On 19 November 2014, I reported on this blog that a special federal prosecutor, Felix Bänziger, appointed in Switzerland had declined to open a criminal investigation against a former federal police officer in connection with the Lockerbie bombing. The complaint, which had been filed by the Zurich businessman Edwin Bollier, was held by Mr Bänziger to be time-barred. See The MEBO and Bollier saga continues.

Today’s edition of the Neue Zürcher Zeitung reports that the appeal division of the Federal Criminal Court in Bellinzona has ruled that because of his previous involvement in Lockerbie matters while employed in the Swiss Attorney-General’s office, Mr Bänziger could not be regarded as impartial and that the Attorney-General must appoint another special prosecutor to consider Mr Bollier’s complaint afresh. See Fall Lockerbie wird wieder aufgerollt. A scrappy translation of the report, courtesy of Google Translate, can be found here. 

The court's judgement (in German) can be read here.

Lockerbie: Malta allegations were fabricated

[This is the headline over a letter from Dr Jim Swire published on this date in 2009 in Malta Today.  It reads as follows:]

As you probably know, there is a growing body of well informed commentators, who believe that not only was Abdel Baset Al Megrahi not guilty of causing the Lockerbie disaster of 1988, but also that the bomb did not start its journey from Malta after all, but was introduced simply by breaking-in to Heathrow airport.

This break-in occurred in the early hours of the day of the Lockerbie disaster, but was concealed by the UK authorities for 12 years until after the trial at Zeist and after the inquests had been held.

I fear the allegations against Malta, and Air Malta in particular, were fabricated to avoid embarrassment to the UK authorities and the Thatcher government of the day in particular.

During the night of 20/21st December 1988 there was a break-in at Heathrow airport. This allowed access to Terminal 3 and surrounding areas where both PanAm and IranAir had facilities. Neither the intruder nor his motive was identified. Although the break-in was recorded by the security guard (Manly) who found it, the airport continued functioning that day as though nothing had happened. Had it behaved responsibly and suspended flights till the break-in was unravelled, my daughter and 269 others might well have been saved. Instead, on the evening of 21 Dec ‘88 the Lockerbie aircraft baggage containers were loaded up in that very area.

In July 1988 a US warship had destroyed an Iranian airbus killing 290 pilgrims, for which Iran had sworn revenge. In October 1988 the (West) German authorities had issued a warning to the UK and others about a specialised type of IED (improvised explosive device) made by the Syrian terror group, the PFLP-GC. This group were in close association with Iran. Their devices uniquely contained a ‘baroswitch’ which switched ‘on’ when it sensed a drop in air pressure as in an aircraft following take off, it took seven minutes from take off to respond. That response then switched on a timer which would run for around 30 minutes.

These IEDs were specifically designed to be brought into an airport hours or days before use, then if put aboard an aircraft, they would always explode around 40 minutes after take-off. No one needed to touch them nor send any electronic message to them, just put them aboard; this timing could not be changed by a user. 270 people were killed by the PanAm 103 bomb, 38 minutes after take off from Heathrow. Coincidence? Or did the intruder leave his IED with the IranAir facility to load onto PanAm 103 that evening?

No evidence could be led at the Zeist trial concerning the Heathrow break-in, because the break-in evidence was unknown to the court. Yet that Court said of Megrahi’s alleged infiltration of the bomb at Luqa airport Malta, that the absence of any evidence as to how he had done this ‘was a major problem for the prosecution case’.

The discoverer of the break-in, Manly, was interviewed in January 1989 by Scotland Yard’s anti terrorist group. The Scottish police combed Heathrow soon after the disaster, they must have found the record of the break-in too.

Yet until the Heathrow security guard came to ask Megrahi’s defence why they had ignored the break-in during the trial, the entire evidence of the break-in had lain unknown to the relatives, the Lockerbie Fatal Accident Inquiry (FAI), the defence and the court for more than 12 years, until after the verdict.

At the Fatal Accident Inquiry (FAI) Sheriff Principal John Mowat, in ignorance of the Heathrow break-in evidence, advised that court that they should accept that the IED had ‘come from Frankfurt’. A Fatal Accident Inquiry is supposed to have the function of defining all the factors contributing to the deaths. Ours was misdirected by being told to assume the device had come from Frankfurt, thereby obscuring the possible role of Heathrow.

I have now requested Scotland’s Lord Advocate to discover whether the Crown Office was informed about this break-in. They had a duty under Scots law to share any relevant material with the defence, and it would be strange indeed if they did not know about it. The Scottish Criminal Case Review Commission (SCCRC) referred this case for a second appeal partly because of incomplete sharing of information by the Crown Office with the defence team. Since our FAI was misdirected in this way, I have also requested the Lord Advocate that it be reconvened or a new one held.

What could have stopped Scotland Yard from passing on what they knew? It was Prime Minster Thatcher who decreed that the investigation should be done by the Scottish police, to the enormous chagrin we are told, of Scotland Yard. Could PM Thatcher have been unaware of Scotland Yard’s involvement in investigating the break-in? The fact that the Met seemed to have been prevented from following up this amazing lead suggests directions from the highest authority.

PM Thatcher refused even to meet us to discuss an inquiry into what had happened. She also published her book The Downing Street Years in 1993 (the break-in evidence was still ‘lost’ then of course), in which she claimed that Reagan’s air raid on Tripoli, which she facilitated in 1986 had prevented any further major terrorist atrocities by Gaddafi’s Libya. The word Lockerbie simply does not appear in her text. If the Lockerbie IED did come in through the Heathrow break-in, her claim would be justified, since there would then be no evidence for a Libyan operation, let alone Maltese involvement. If she knew, why didn’t we and the courts know? Isn’t that perversion of justice? Were there some other guilty secrets of foreknowledge of what was to happen?

Writing in 1989 in The lessons of Lockerbie (RISCT), Professor Paul Wilkinson of St Andrews University wrote “the Department of Transport is singularly ill fitted to play a lead role in aviation security… in the author’s view it is in far too cosy a relationship with vested commercial interests in the transport business for whom all other considerations, including security, must be subordinated to the profit motive”.

Maybe the same applies to British Prime Ministers, for as President Clinton later so succinctly put it: “It’s the economy, stupid.”

Where is our inquiry? PM Brown has decided to hold an Iraq war inquiry ‘behind closed doors’, the only door we have seen in searching for truth in an inquiry over the greatest terrorist outrage in the UK has been the one slammed in our faces by PM Thatcher and her successors over 20 years.

Contemporary report of Tony Gauci evidence

[On this date in 2000, Tony Gauci was in the witness box at the Lockerbie trial at Camp Zeist. What follows is the report on the BBC News website of that day’s proceedings:]

The Lockerbie trial has heard that fragments of a baby romper suit recovered from the wreckage of Pan Am Flight 103 were traced back to a clothes shop in Malta.

The blue Babygro was said to have been in the suitcase carrying the bomb which blew the plane apart above Lockerbie.

All the items were bought by a Libyan man who went into Tony Gauci's outfitters in the Maltese town of Sliema just days earlier, the trial judges heard.

Mr Gauci picked out one of the accused - Abdelbaset Ali Mohmed Al Megrahi - as being someone who "resembled" the man who visited his shop, although he could not positively identify him.

The prosecution says the two Libyan suspects went to the shop in Sliema on 7 December, 1988, and bought clothes and an umbrella.

The charred remains of the items were later recovered from the bomb debris in and around Lockerbie.

Mr Gauci told the Scottish Court in the Netherlands that a Libyan man came into his shop - Mary's House, Tower Road, Sliema - about a fortnight before Christmas 1988.

The man looked around and when Mr Gauci invited him to try on some trousers he said they were for someone else.

The man then bought two pairs of trousers, two shirts, two cardigans, two pairs of pyjamas, a blue romper suit and, because it was raining slightly at the time, an umbrella.

"He left the shop to go to the taxi rank to get a taxi. He came back in the taxi to collect the clothing, which I took out to the taxi," said Mr Gauci.

It was not until September 1989 that Scottish and Maltese police officers went to the shop to confirm that the fragments of clothing linked to the suitcase holding the radio-cassette bomb had been purchased at Mary's House.

The court was shown pictures of the charred clothing, showing tell-tale manufacturing batch numbers and makers' labels.

A fragment of the sky-blue romper suit was displayed on courtroom monitors, burned and blackened apart from a bright red warning label "Keep Away From Fire".

The trial has resumed after a week-long break requested by prosecutors at the end of last month to allow them to examine last-minute defence witness statements.

The trial is now moving into a second stage of evidence, after spending the last two months examining detailed forensic testimony and items collected from crash site debris.

The prosecution aims to prove that the two suspects worked for Libya's secret service and that, posing as Libyan Arab Airlines employees, they placed a suitcase containing a bomb concealed in a radio-recorder on board a plane in Malta.

The suitcase was then allegedly transferred from Frankfurt to London and onto the doomed New York-bound jet in London.

The defence is seeking to raise "reasonable doubt" in the minds of the three Scottish judges to secure a not guilty or not proven verdict, the latter being unique to Scottish law.

The Libyans' legal representatives are trying to incriminate Palestinian extremists operating in Frankfurt.