Demand for more Lockerbie papers

[This is the headline over a report published on the BBC News website on this date in 2009. It reads in part:]

Judges have ordered prosecutors to hand over more undisclosed documents they may have concerning a crucial witness at the trial of the Lockerbie bomber.

Abdel Baset Al Megrahi's lawyers went to the Court of Criminal Appeal in Edinburgh seeking further material for the appeal against his conviction. (...)

The Crown said it believed it had already handed over all the documents sought by the defence.

The material being sought includes records, logs, notes and police computer entries concerning a sighting by Maltese shopkeeper Tony Gauci of a clothes buyer in September 1989.

Mr Gauci gave evidence at the trial at Kamp Zeist in the Netherlands that the purchaser looked a lot like Megrahi.

The clothing was packed into a suitcase with the bomb.

The material wanted by defence lawyers also includes any documents on a meeting between police and Mr Gauci and an interview held with him.

It further includes material over aspects of an ID parade held at Zeist in April 1999, attended by Mr Gauci, at which Megrahi was paraded.

In the grounds of appeal lodged on behalf of Megrahi, those relating to the evidence of Mr Gauci run to almost 150 pages.

More documentation is also sought of contact between police and other investigators with a potential witness, David Wright.

Mr Wright did not give evidence at Megrahi's trial but it is said he "may have material evidence to give bearing on the identification of the appellant as the purchaser of goods associated with the Lockerbie incident".

The Lord Justice General, Lord Hamilton, said: "Without expressing any view on the adequacy of the steps already taken by the Crown to satisfy the claims for recovery, we consider that the appropriate course at this stage is to identify the classes of document which, if they exist, the appellant is in our judgement entitled to recover."

Lord Hamilton, sitting with Lord Kingarth and Lord Eassie, said: "The Advocate General has not yet scrutinised all the material on behalf of the United Kingdom Government.

"It is possible that objections, based on legal privilege, might yet be made on the part of other governments or agencies.

"The order which we shall pronounce will be subject to due consideration of any such objections."

Megrahi's case was referred back to the appeal court by the Scottish Criminal Cases Review Commission, which was set up to investigate alleged miscarriages of justice.

Kenny MacAskill on the “hero’s welcome” for Megrahi

[What follows is excerpted from an article by Kenny MacAskill in today’s edition of The Scotsman:]

Fake news is a phrase that has recently entered the political lexicon. It’s compounded by half-truths and disinformation that distorts the reality of what really happened. For many people these can appear as facts, as they’re reported as truths and sometimes even the evidence before them seems to confirm that. But, they’re false. Much of this is considered to be a recent invention and even an American import. However, its happened oft times before and in the UK as well.

I know, as I have seen it when I was Justice Secretary. (...)

But there was far worse and much more sinister in actions that related to my decision to release Al Megrahi. It is supported by some and disagreed with by others, as their right and entitlement. It’s a decision I stand by now, as then. However, there are things that only came to light after I demitted office and began to research for my book on Lockerbie. They disclosed some information that had been suppressed and other facts that had been distorted, by both the British and American governments.

Other than the decision to release Al Megrahi on compassionate grounds, the loudest criticism was reserved for the so-called hero’s welcome he received on his return to Libya. As with others, I saw it unfold on television when the plane carrying him landed at Tripoli Airport. It was immediately clear there would be a problem because of what was being shown with jubilant crowds celebrating. Assurances had been sought and given by the Libyans that no such triumphalism would be shown, out of respect to the victim’s families. It appeared that had been breached and huge criticism followed including from both UK and US Governments. David Miliband, the Foreign Secretary, and even President Obama, expressed outrage.

I had to accept it had occurred and that our requests had been ignored, although I was somewhat perplexed by a former UK Ambassador to Libya who had supported the release and who had argued that the reception was relatively low key. However, I had seen the TV footage myself, and the camera doesn’t lie.

But, it had. A book published by a State Department official who served in Libya during that period, and subsequent WikiLeaks documents, showed the reality. The reception at the airport was relatively low key and adhered to assurances given, as reports from Americans on the ground back to Washington disclosed. However, Libyan TV had spliced the footage with an entirely separate event on-going in a central square in Tripoli that had nothing to do with the release of Megrahi, and where people were oblivious to it.

However, conjoining the two events made it look as if there was rejoicing in the streets, which there wasn’t. It was not just the Scottish Government that had made request that there be no triumphalism, but the US authorities had also threatened reprisals if there were. The WikiLeaks documents confirmed that the Libyans had adhered. That didn’t stop the British and American Governments from fulminating about the supposed celebrations, when they knew differently.

Similarly, there have always been accusations about a deal for oil. And there was more than one, but none that the Scottish Government was involved in. At the time of the row over a prisoner transfer agreement (PTA) being entered into between the UK and Libya, the British Justice Secretary made it clear to me the importance of the agreement to BP. They were in competition with the American company Halliburton for a major contract and it was clear that this was part of it. That, however, was denied by the UK Government. As it was, the Scottish Government opposed the PTA and I refused the application. I did though grant compassionate release as Al Megrahi met the criteria and I believe that it’s the humane thing to do.

However, later investigations showed that another deal for oil preceded all those events. They showed that in 2004, Tony Blair embraced Colonel Gadhafi in the Libyan desert. The following day Shell petroleum got a commercial deal with the Libyans worth £550 million. But there was something in it for the Libyans too. Days after that, MI6 handed over a Libyan dissident to the Americans, who in turn returned him to Gadhafi for torture and imprisonment.

[RB: What Saif-al-Islam Gaddafi had to say about the “hero’s welcome” can be read here. And the similar views of Libya’s then ambassador to the United States, Ali Aujali, can be read here.]

Evidence against Megrahi demolished

[What follows is from an item originally published on this blog on this date in 2012:]

Megrahi evidence "fails to stand up to serious scrutiny"

[Here is an excerpt from Dr Morag Kerr’s Scottish Review article An overview of the Lockerbie case in which the evidence against Abdelbaset Megrahi is set out and demolished:]

Evidence against Megrahi fell under a number of headings.

1. A member of the Libyan security services who had turned CIA informer identified him as a senior security operative.

2. Tony Gauci identified him as 'resembling' the man who bought the clothes in his shop.

3. He was shown to have been at Luqa airport at the time KM180 departed, travelling on a false passport.

4. Baggage transfer records at Frankfurt showed evidence of an item of luggage being transferred from KM180 to PA103A, even though no passenger from the Malta flight was booked on the Heathrow flight, and all the passengers collected their luggage at their destinations with nothing going astray.

5. A small piece of printed circuit board found embedded in a scrap of the Maltese clothes was identified as a part of a countdown timer made by a Swiss firm which Megrahi had had business dealings with. This timer was part of a special order of only 20 items supplied exclusively to Libya.

The difficulty with this is firstly that each of these points fails to stand up to serious scrutiny, and secondly that far more robust evidence exists for both a different modus operandi and a different set of perpetrators.

    1. Membership of the Libyan security services

The CIA informant, Majid Giaka, was originally the Crown's star witness. Without his evidence, the indictments against Megrahi and his colleague Lamin Fhimah (who was acquitted) could not have been issued in the first place. However, CIA cables revealed during the trial exposed Giaka as a fantasist who was inventing 'intelligence' for favours and money from the CIA. The judges discounted all his evidence except for his statement that Megrahi was a member of the Libyan security forces. No other evidence for this was produced, and Megrahi has consistently denied the allegation. No evidence has ever emerged linking Megrahi to any other terrorist atrocities or human rights abuses of the Gaddafi regime, or to refute his claim that he was merely an airline employee who was also moonlighting as an entrepreneur businessman.

    2. The identification evidence

Tony Gauci was first interviewed about the clothes sale on 1st September 1989, nine months after the event. He described the purchaser as Libyan, aged about 50, over six feet tall, heavily built and dark-skinned. Megrahi is 5 feet 8 inches tall, light-skinned, of medium build, and was 36 at the time of the purchase. A photofit and an artist’s impression produced at the time suggest the man may have been negro or mixed race. Gauci was unsure of the date, but this was narrowed down to either 23rd November or 7th December 1988 on the basis of televised football games. Gauci stated that the Christmas lights were not yet lit, and it was raining when the customer left the shop.

On 15th February 1991 (well over two years after the purchase) Gauci was shown a police photospread including a picture of Megrahi. He initially rejected all the men as being 'too young', but when urged to reconsider he chose Megrahi's picture as the one that looked most like the customer. However, all the policemen present knew which picture was the suspect's, a recognised confounder in such exercises and something now banned, and Megrahi's picture was appreciably different from the others in both size and quality. As a further confounder the passport photo reproduction used was such a poor likeness of Megrahi as to be essentially unrecognisable. It did, however, look a bit like the photofit Gauci had produced in 1989.

By the time of the live identity parade in April 1999, better likenesses identifying Megrahi as the 'Lockerbie bomber' had appeared in many publications, which Gauci is known to have seen. (So widespread had been the publicity that most people following the case could probably have picked the accused out without ever having met him.) Megrahi was by then 47, close to the age the purchaser was said to be in 1988. The 'foils' in the parade were nearly all much younger (and bore little resemblance to Megrahi), even though by Gauci's original estimate the purchaser would by then have been in his early sixties. Megrahi in the flesh looked nothing like the images Gauci had produced for the police in 1989, or the blurry passport photo he picked out in 1991. Nevertheless, Gauci once again fingered him as 'resembling' the purchaser.

The date of the purchase was important, as Megrahi was in Malta on 7th December 1988 (using his own passport), but not on 23rd November. Meteorological evidence demonstrated that there was light rain in Sliema at the relevant time on 23rd November, but not on 7th December. The Christmas lights were eventually found to have been switched on on 6th December.

In late 1998 a magazine article was published with a recognisable photograph of Megrahi, together with a list of all the discrepancies between Gauci's original description of the purchaser and date, and the case against Megrahi. Gauci had a copy which was only taken from him four days before the identity parade. When he gave evidence, he consistently back-tracked on his original statements regarding height, build, age, Christmas lights and rain, always to favour the prosecution case. Tony Gauci's brother Paul, who was later rewarded for 'maintaining the resolve of his brother', had long expressed interest in a reward for the family's input, and after Megrahi was convicted the brothers were paid an alleged $3 million by the US Department of Justice's 'Rewards for Justice' programme.

    3. Presence at Luqa airport

Megrahi was at Luqa airport on the morning of the disaster, using a passport in the name of 'Abdusamad'. However, all he did was catch his flight for Tripoli, without going airside, and without checking in any hold luggage. The court accepted that he could not have got the bomb suitcase on to KM180 himself, and must have had an accomplice. That accomplice was originally said to have been Lamin Fhimah, but Fhimah could not even be shown to have been at the airport that morning. The 'false' passport was a legal one, issued to Megrahi to allow him to conceal his airline employment while negotiating business deals to circumvent the sanctions then in force against Libya, and which he occasionally used for personal travel. Although Megrahi used it for that trip, he had business meetings in Malta using his own name, and stayed at a hotel where he was well known.

Not only was no other accomplice identified, security at Luqa airport was unusually tight in 1988, and baggage records provided strong evidence that there was no unaccompanied luggage on flight KM180. Despite intensive and intrusive investigation lasting many months, no plausible mechanism whereby the bomb suitcase could have been loaded was ever identified, and no trace of the bomb was found on the island.

    4. Baggage transfer at Frankfurt

The only evidence for an unaccompanied suitcase coming from Malta was a single line of code in a printout taken from the Frankfurt airport automated baggage system, which surfaced in August 1989. However, that system was far from transparent, and a number of guesses and assumptions were necessary to conclude that something might have been transferred from KM180 to PA103A. In the end, two items apparently loaded on to the Heathrow flight could not be identified, one seeming to have come from Malta and one from Warsaw. The coincidence of the Maltese clothes caused the investigators to become convinced the former item was the bomb, and this was never reconsidered despite the failure to find any way the bomb could have been put on board at Luqa. The Warsaw-origin item was never investigated.

    5. The timer fragment

This is the most notorious item in the Lockerbie case. Originally the investigators believed the bomb to have been triggered by an altimeter device, operating on air pressure, and designed not to explode until the device was airborne (...) This introduced problems in respect of a Frankfurt introduction, as such a device should have exploded over France. A hypothesis was developed that the altimeter had malfunctioned on the feeder flight, only to detonate after the second take-off. When the focus of the investigation switched to Malta and a third flight, this introduced a paradox that was not addressed for over a year, until the identification of this fragment as part of a countdown timer resolved the difficulty.

The MST-13 timer was said to be one of a special run of only 20 supplied exclusively to Libya by the Swiss firm MEBO. Megrahi had business dealings with that firm, but not relating to, or at the time of, the purchase of the timers. Nevertheless this was said to be the 'golden thread' linking him to the bomb. This item had extraordinarily irregular provenance within the forensic investigation, with paperwork anomalies leading many commentators to suspect its appearance in the chain of evidence had been back-dated. In addition, the Libyan provenance was less certain than claimed, with Lockerbie occurring over two years after the timers were supplied, and examples having been found in other parts of Africa.

Irrespective of who had bombed the plane, the countdown timer introduced another paradox. Maid of the Seas exploded only 38 minutes after her wheels left the tarmac, and the plane was not late. There was a seven-hour flight ahead of her, with a thousand miles of Atlantic ocean where incriminating clothes and PCB fragments could have been buried forever. An altimeter timer would inevitably have exploded around 40 minutes into the flight, regardless of take-off time. Using a countdown timer set so early in the flight time carried a huge risk that the explosion would have occurred harmlessly on the tarmac if the plane had missed its slot at Heathrow – as could easily have happened on a stormy winter evening.

It was only in February 2012 that metallurgical evidence concealed from the original trial was revealed, which showed that the fragment could not have been one of the 20 items MEBO had supplied to Libya. This discovery calls into question whether the PCB chip was even part of a countdown timer, rather than some other electronic component using the same basic template.

[RB: Since then, Dr Kerr has, of course, established beyond reasonable doubt that the bomb suitcase was ingested at Heathrow, not Luqa in Malta.]  

At a loss to explain this decision of the appeal court

[What follows is excerpted from a report published in The Guardian on this date in 2002:]

The Libyan intelligence agent who murdered 270 people in the Lockerbie bombing experienced his first night in the Scottish jail cell where he will spend the next 20 years last night after his appeal was thrown out by five judges.

Only hours after the appeal court judges announced that they had unanimously rejected Abdel Baset al-Megrahi's appeal on all grounds, the Libyan responsible for the biggest act of mass murder in British history was flown to his specially constructed cell in Glasgow's Barlinnie prison. (...)

Hans Köchler, one of five United Nations observers who followed the Lockerbie case, last night described the dismissal of Megrahi's appeal as a "spectacular miscarriage of justice".

Professor Köchler, who teaches philosophy at the University of Innsbruck in Austria, said:"I am at a loss to explain how this decision of the appeal court can have been passed unanimously in light of some of the questions asked and analysis presented by one or other of the appeal court judges during the appeal," he told BBC Radio Scotland's Newsdrive programme.

For the American and British relatives who have spent the 13 years since their loved ones died campaigning and pushing for justice, yesterday was a monumental day. In the courtroom, they hugged each other. Some shouted "yes".

Jim Swire, leader of the UK Families Flight 103 group, said it was time for the government to make good its promises and hold a public inquiry. "This is not a time for celebrating," he said. (...)

During three weeks of argument at the Camp Zeist courtroom, defence lawyers claimed that key evidence - notably an identification of Megrahi by a Maltese shopkeeper - was unsafe. They also brought new evidence of a break-in at Heathrow, where the defence claimed the bomb was planted, hours before the bombing.

The verdict was met with anger in the Arab world. Outside the court, Hafid Jhoja, president of the Libyan bar association said: "The trial was a political matter, not a legal matter. There was no clear evidence, as the whole world knows."

In Tripoli, a foreign ministry spokesman demanded the return of Megrahi, but, away from the media grandstanding, Colonel Muammar Gadafy's regime is being more subdued as the diplomatic process to bring it back into the international fold continues.

American relatives of those who died have launched a multimillion dollar civil action against the Tripoli regime. Sources close to the civil case have told the Guardian that Libyan lawyers have become more conciliatory since Megrahi's conviction last year and the Arab country appears prepared to meet the demands of the international community and pay compensation to the families of the victims.

In London, the foreign secretary, Jack Straw, said he hoped the appeal court's decision would bring solace and comfort to the families.

Six impossible things before breakfast

[On this date fifteen years ago, Abdelbaset Megrahi’s appeal against conviction was dismissed by the Criminal Appeal Court sitting at Camp Zeist. Here is what I have written about it:]

Introduction

Megrahi duly intimated his intention to appeal against his conviction. Pending the appeal he remained incarcerated in the Netherlands in HM Prison, Zeist. On 14 March 2002 the appeal was dismissed. An Opinion of the Court extending to 200 typed pages divided into 370 paragraphs was delivered[3]. The appeal was against conviction only: there was no attempt to challenge the recommendation, that a minimum of twenty years should be served before release was considered, which accompanied the trial court’s mandatory sentence of life imprisonment.

As required by the provisions of the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998, the Appeal Court consisted of five Lords Commissioners of Justiciary and sat in the premises of the Scottish Court at Camp Zeist in the Netherlands[4]. The hearing extended from 23 January to14 February 2002. The proceedings (except when the evidence of witnesses was being heard) were televised live over the internet on a website maintained by the BBC, the first occasion in Scotland (or elsewhere in the United Kingdom) that live public broadcasting of judicial proceedings has been permitted. The consensus of opinion was that the administration of justice was not impaired by the presence of the television cameras, but that the level of excitement and drama was such that there is unlikely to be much clamour in the foreseeable future from either broadcasters or the viewing public for the experiment to be repeated.

The grounds of appeal

The only ground upon which a criminal appeal can succeed in Scotland is that there has been a miscarriage of justice. In the Note of Appeal lodged on behalf of Megrahi there were set out in 21 paragraphs (many of them subdivided) the grounds upon which, individually or in combination, it was contended that a miscarriage had occurred. One of those grounds related to the existence and significance of evidence which was not heard during the original proceedings. This evidence related to a breach of security at Heathrow Terminal 3 (potentially giving access to the baggage build-up area) the night before Pan Am 103 departed from that terminal on its fatal flight. The Appeal Court allowed the new evidence to be led before it, but ultimately concluded that it could not be regarded as possessing such importance as to have been likely to have had a material bearing on the trial court’s determination of the critical issue of whether the suitcase containing the bomb was launched on its progress from Luqa Airport in Malta (an essential plank in the prosecution case) or from Heathrow. This ground of appeal was accordingly rejected.

As far as the appeal based on the remaining twenty paragraphs of the written grounds of appeal was concerned, its failure appears to have been rendered virtually inevitable by two concessions made in the course of argument by the appellant’s counsel. The first of these, as recorded in the Opinion of the Court (paragraph 4) is as follows:

“At the trial it was not submitted on the appellant’s behalf that there was insufficient evidence in law to convict him. In its judgment the trial court rejected parts of the evidence relied upon by the Crown at the trial. Nevertheless, it was not contended in the appeal that those parts of the evidence not rejected by the trial court did not afford a sufficient basis in law for conviction.”

The second concession is recorded in the following terms (paragraph 5):

“Under subsection (3) [of s106 of the Criminal Procedure (Scotland) Act 1995] an appellant may bring under review of the High Court:

‘any alleged miscarriage of justice, which may include such a miscarriage

based on –

(b) the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned.’ …

Mr Taylor, who appeared for the appellant, expressly disavowed any reliance on para (b).”

The importance of these concessions is emphasised by the Appeal Court in the penultimate paragraph of its Opinion (paragraph 369):

“When opening the case for the appellant before this court Mr Taylor stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence. He also stated that he was not seeking to found on section 106(3)(b) of the 1995 Act. His position was that the trial court had misdirected itself in various respects. Accordingly in this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment. We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.”

The issues that the appeal did not address

The limitations under which the Appeal Court was thus constrained to operate effectively disabled it from considering the issues of (a) whether there was sufficient evidence in law to justify such absolutely crucial findings-in-fact by the trial court as (i) that the date of purchase in Malta of the clothes surrounding the bomb was 7 December 1988, (ii) that Megrahi was the purchaser and (iii) that the case containing the bomb started its progress from Malta’s Luqa Airport and (b) whether those findings or any of them (on the assumption that there was a legal sufficiency of evidence) were such as no reasonable trial court, properly directing itself, could have made, or been satisfied of beyond reasonable doubt, in the light of (i) justifiable criticisms of the evidence and witnesses supporting them and (ii) ex facie credible contrary evidence.

The issues that the appeal did address

What the appellant instead invited the Appeal Court to do was to hold that various findings-in-fact made by the trial court (a) were based upon a misunderstanding of the evidence or were without a basis in the evidence; or (b) were arrived at by giving undue weight to evidence that supported them or insufficient weight or “proper regard[5]” to evidence that contradicted them; or (c) were in the nature of inferences from primary facts drawn in situations where other, non-incriminating, inferences were equally open.

As regards (a) the Appeal Court held that in two or three instances the trial court had found a fact proved on the basis of a misunderstanding of the evidence led, or where there was no evidential basis for the finding. But in each such case the Appeal Court went on to decide that the error was insignificant, could not have affected the ultimate outcome of the case and, hence, was not such as to give rise to a miscarriage of justice.

As regards (b) and (c) the Appeal Court insisted that, as long it was (as here) not contended that no reasonable trial court could have made the finding-in-fact, challenge of findings on these grounds was simply not competent. The weight to be given to evidence or the “proper regard” to be accorded to it were matters entirely for the trial court, as was the question of what inferences to draw from the primary facts that it held proved. Even where, as here, the tribunal of fact was not an inscrutable jury but a bench of judges who gave reasons for their findings, the Appeal Court was simply not entitled to substitute its own views for those of the trial judges. It followed that all of the grounds of appeal directed towards issues of “weight” or “proper regard” fell to be rejected as raising matters not within the competence or powers of the Appeal Court. This is emphasised at various points in the Opinion of the Court[6] but principally in the section headed “The function of an appeal court.[7]”

Conclusion

Before the verdicts in the original trial were delivered, I expressed the view [on TheLockerbieTrial.com website] that for the judges to return verdicts of guilty they would require (i) to accept every incriminating inference that the Crown invited them to draw from evidence that was on the face of it neutral and capable of supporting quite innocent inferences, (ii) to be satisfied beyond reasonable doubt that the Maltese shopkeeper, Tony Gauci, positively identified Megrahi as the person who bought from his shop in Sliema the clothes and umbrella contained in the suitcase that held the bomb and (iii) to accept that the date of purchase of these items was proved to be 7 December 1988 (as distinct from 23 November 1988 when Megrahi was not present on Malta). I went on rashly to express the opinion that, for the judges to be satisfied of all these matters on the evidence led at the trial, they would require to adopt the posture of the White Queen in Through the Looking-Glass, when she informed Alice "Why, sometimes I've believed as many as six impossible things before breakfast." In convicting Megrahi, it is submitted that this is precisely what the trial judges did.

As far as the outcome of the appeal is concerned, some commentators have confidently opined that, in dismissing Megrahi’s appeal, the Appeal Court endorsed the findings of the trial court. This is not so. The Appeal Court repeatedly stresses that it is not its function to approve or disapprove of the trial court’s findings-in-fact, given that it was not contended on behalf of the appellant that there was insufficient evidence to warrant them or that no reasonable court could have made them. These findings-in-fact accordingly continue, as before the appeal, to have the authority only of the court which, and the three judges who, made them.

Until such time as an appellate court (perhaps on a reference from the Scottish Criminal Cases Review Commission) is required to address the fundamental issues of (i) whether there was sufficient evidence to warrant the incriminating findings, (ii) whether any reasonable trial court could have made those findings (and could have been satisfied beyond reasonable doubt of the guilt of Megrahi) on the evidence led at Camp Zeist and (iii) whether Megrahi’s representation at the trial and the appeal was adequate, I will continue to maintain that a shameful miscarriage of justice has been perpetrated and that the Scottish criminal justice system has been gravely sullied.

Footnotes

3. Al Megrahi v H M Advocate 2002 SCCR 509, available at http://www.scotcourts.gov.uk/docs/default-source/sc---lockerbie/lockerbieappealjudgement.pdf?sfvrsn=2

4. The High Court (Proceedings in the Netherlands) (United Nations) Order 1998, SI 1998 No 2251, art 14(1), (2) available at http://www.uklaws.org/statutory/instruments_20/doc20555.htm

5. "Proper regard" is an expression used frequently in the written grounds of appeal.

6. For examples of grounds of appeal being rejected on this basis, see Opinion of the Court, paras 76, 80, 84, 118, 129,262, 274, 288, 327, 351.

7. See Opinion of the Court, paras 20-27.

SCCRC 'queried Lockerbie verdict'

[This is the headline over a report published on the Evening Standard website on this date in 2012. It reads as follows:]

New details of the legal grounds that could have cast doubt on the Lockerbie bomber's conviction have been disclosed, according to a newspaper report.

The six grounds for referral back to the appeal court are contained in a document by the Scottish Criminal Cases Review Commission (SCCRC), the body which investigates potential miscarriages of justice, with extracts printed in The Herald newspaper.

The Scottish Government has brought forward legislation to bring about the publication of the full report but data protection rules still bar its formal publication.

On claims the verdict was unreasonable, the SCCRC report quoted in The Herald states: "The commission has reached the view that the trial court's verdict is at least arguably one which no reasonable court, properly directed, could have returned."

The six grounds for referral were previously published by the SCCRC in summary. Four of the reasons refer to undisclosed evidence from the Crown to Abdelbaset al-Megrahi's defence team.

Those grounds cover evidence about a positive identification of Megrahi by Tony Gauci, a Maltese shopkeeper who said he sold clothes to a Libyan man. The clothes were linked to a suitcase loaded onto the plane, which was then linked to the bomb and eventually to Megrahi.

The SCCRC raised concerns that evidence suggesting Mr Gauci had seen a magazine article linking Megrahi to the bomb was not passed to the defence.

Contradictions about the day Megrahi was said to have bought the clothes were also highlighted. The court was told the purchase was on December 7 but the SCCRC said Mr Gauci also thought it might have been November 29.

"In the commission's view, by withholding this information the Crown deprived the defence of the opportunity to take such steps as it might have deemed necessary," the report in The Herald adds.

Also of concern to the SCCRC was undisclosed evidence about Mr Gauci's interest in rewards. A fifth reason covered "secret" intelligence documents not seen by Megrahi's legal team while the sixth referred to new evidence on the date of clothes purchased in Malta.

The truth about Lockerbie is likely to be ignored

[What follows is the text of an article by Jonathan S Tobin published on this date in 2014 on the website of Commentary magazine:]

Could there be a worse week for new revelations about the 1988 Lockerbie tragedy to be unveiled? The report claiming that Iran rather than Libya was the culprit in the atrocity should raise eyebrows around globe. But despite the persuasive case made for this theory, don’t expect the United States or any other Western country to heed the new evidence and re-open the case. With both the US and its European allies desperate to reach a new nuclear deal with Tehran that will enable them to halt the sanctions on the Islamist regime, discussions about the true nature of the administration’s diplomatic partner are, to put it mildly, unwelcome. If Washington isn’t interested in drawing conclusions about Iran from the seizure of an arms ship bound for terrorist-run Gaza last week or even the latest threat from its Revolutionary Guard about destroying Israel uttered yesterday, why would anyone think the Obama administration would be willing to rethink its conclusions about a crime that was long thought to be solved?

To be fair to the administration, a lot of time has passed since the downing of Pan Am Flight 103 over Lockerbie, Scotland that cost the lies of 259 passengers and crew and 11 persons on the ground. The US and the West put a lot of energy into proving that agents of the Libyan Gaddafi regime were responsible. The Libyans were known state sponsors of terror and had an axe to grind against the US at the time. After the conviction of a Libyan intelligence agent for these murders, even more energy was spent on vainly trying to persuade a Scottish court from letting him go home to Libya, where he eventually died of cancer. [RB: It was, of course, a Scottish Government minister, not a Scottish court, that granted compassionate release.] Why would anyone in the US government want to admit that we were wrong all these years? Nor would most Americans think an investigation undertaken by a news organization like the reliably anti-American Al Jazeera, no matter how meticulous, would persuade them to rethink their long-held conclusions about the case.

But, as David Horovitz writes persuasively in the Times of Israel, Al Jazeera’s report is based on information from the same Iranian defector that accurately testified about the 1994 AMIA bombing in Buenos Aires, Argentina that killed 85 persons. Though the full truth about Lockerbie is yet to be uncovered, Horovitz is right to point out that if we accept the word of former Iranian intelligence agent Abolghasem Mesbahi about Tehran’s terrorist plot in South America, there’s no reason to dismiss his detailed claims about Lockerbie. The pieces here fit too well to allow us to merely shrug and move on.

But the problem isn’t Mesbahi’s credibility or even the embarrassment that a finding that debunked previous Western intelligence work on Lockerbie would cause in Washington and London. Rather, it’s the fact that the defector is pointing the finger at a government that the West wants very much to rehabilitate these days.

The United States and its European allies are deeply invested in the notion that Hassan Rouhani’s victory in Iran’s faux election last year marked a genuine change in the country’s political culture. Justifying a weak interim nuclear deal that granted Iran both significant sanctions relief and a tacit recognition of its “right” to enrich uranium was made possible not only by the arguments about Iran’s supposed desire for a new start with the West but also by a determination by the administration that it wanted to step away from confrontation with Tehran at all costs.

The president is so worried about hurting the delicate feelings of the anti-Semitic government in Tehran that he is willing to veto new sanctions legislation that would have strengthened his hand in the talks. This policy is difficult enough to justify in the face of Iran’s continued support for terrorism, its genocidal threats against Israel (which make its possession of nuclear weapons more than a theoretical security problem), and its long record of diplomatic deception. The last thing the president and Secretary of State Kerry want is to have the Lockerbie case disinterred and for the regime—many of whose leading players were active in the security apparatus at the time—indicted for mass murder of innocent Americans.

So don’t expect anyone in Washington to take the new evidence about Lockerbie seriously or even to pay lip service to the notion of re-opening the case. Horovitz is right that Al Jazeera’s report ought to justify a new investigation that will fearlessly follow the evidence to the guilty parties. But as long as making nice with Iran is one of the diplomatic priorities of the United States, the truth about Lockerbie is likely to be ignored.