The evidence I had been listening to couldn't lead to that verdict

[What follows is excerpted from a long article profiling Jim and Jane Swire that was published in The Herald on this date in 2007:]

Last Thursday's ruling that the man convicted of the Lockerbie bombing can appeal for a second time means Abdelbaset Ali Mohmed al-Megrahi may soon return home to his wife and children. "He belongs back at home with his family," says Jim, who - along with Jane - has long been convinced of Megrahi's innocence. (...)

Flora Swire was training to be a neurosurgeon when she met young American doctor Hart Lidov. She began commuting regularly across the Atlantic to see him and, just before Christmas, decided on a whim to fly to New York so they could spend the holiday together. (...)

When the news first broke on television, the Swires tried to quell rising panic with a conviction that it couldn't be her plane - the timing didn't match the details she had given.But as they realised it had been delayed, the terrible truth hit.

"When that bomb went off it turned all our lives upside down," says Jim simply, and trails off as Jane takes over: "It changes your attitude to everything. You never quite learn to live with it. Well, you do your best, but it changes you. It's one of the worst nightmares any parent can have, to lose their precious child."

Blindly, the couple stumbled through those early days of realisation. Jane was driven by a desperate determination to hold their remaining family - including 16-year-old son William and 19-year-old daughter Cathy - together. But with questions imploding in his mind, Jim was rapidly forming a conviction: that the only way to make sense of his daughter's death was to find out exactly what had happened, and who was responsible.

Within weeks, Jim Swire's craggy charismatic face, mane of white hair, and quiet, dignified air had become familiar to news viewers and newspaper readers, as he took up the role of spokesman for the victims' families' campaign. He shored up information as if it were a shield that could protect him from the horror of what had happened, and flew around the world to meet experts, attend conferences and shed light on the shady world of international terrorism. Each answer led to another question. He hadn't meant to go so far. "I would never have dreamed that I would set out on an 18-year campaign," he admits now. "But I found - still find - the whole business of not unravelling who killed her, or why she wasn't protected, an insult to her memory. It means she didn't matter. She was just cannon fodder and happened to be in the way when something ghastly happened. And I can't take that line."

He was, he notes drily, ideally equipped for the journey. After graduating from Cambridge, where he met his wife, he joined the army and learned about plastic explosives and detonating bombs. A brief spell with the BBC before he became a doctor provided insight into the workings of the media organisations that would later prove so useful to his campaign.

When the suspects were named he pushed unwaveringly for a trial, flying three times to Tripoli to meet Libyan leader Colonel Gaddafi, convinced he could get him on side. "You might not think there was any common ground between a GP from the Midlands and an army colonel turned dictator based in an Arab country. But there was," he smiles faintly. "He had lost his adopted daughter Hannah when she was just 15 months old, when the US bombed Tripoli in 1986. I took a book of pictures of Flora, making sure there was one of her at just that age."

He enjoys telling the stories about James Bond-style meetings in Gaddafi's headquarters: describing a journey in a blacked-out Mercedes; recalling the way the portcullis in the wall opened as if by magic, the steel teeth of the security gate, Gaddafi's all-female team of bodyguards, who released their gun catches in unison when he approached the Libyan leader to pin a badge proclaiming "Pan Am 103 - the truth must be known" on his flowing green robes. (...)

In 2001, Jim got what he wanted - a trial, to be held under Scottish law in the Dutch town of Zeist. Before leaving for Holland, the couple watched on television as Megrahi and Al Amin Khalifa Fhimah, his co-accused, arrived (Fhimah was cleared).

"When I saw these two people being led from the plane, the feeling was so emotional," says Jane, "the twist in my gut, as I watched the men I thought were responsible for my daughter's death. We believed this was the trial that would lead to some sort of resolution. It would spell justice. But it would never bring Flora back. And the who, when, why and what were questions that had always been so much more important to Jim than they were to me. I was just busy trying to come to terms with the loss of my Flora."

Her husband leans forward, his voice low. "Now Jane, but you also accept that it was my way of coping."

She nods. "Well, yes, but it couldn't ever have been mine. I had to step away, to care for the rest of my family." She swallows, then adds: "But in essence, what Jim has done is something to approve of. Many people weren't keen for this to happen. Someone needed to fight."

Jim Swire's fight was certainly not universally popular. There was hate mail - "really nasty stuff", he confides - and criticism from many of the American victims' relatives, who saw things in more black-and-white terms.

For Jim those complexities became all too clear as he sat, day after day, in the courtroom, realising with slow, sinking disappointment that he could not contain the nagging doubts that these men had nothing to do with the atrocity that killed his daughter. As he listened to the evidence he grew less and less convinced of its authenticity. "When I went to that trial I thought I was going to watch the trial and conviction of the two guys who had murdered my daughter. But what I heard there led me to peel away from the belief that this was going to reveal the truth."

When the verdict was finally read out, Jim Swire collapsed. "I just couldn't conceive that they could have found him guilty," he says, extending his bony fingers in a gesture of bewilderment. "I fainted with shock. I went to Eton: I was taught to question things, not to accept them at face value.

"But my education also drummed into me to be respectful of authority. Those judges in their regalia - with all the pomp and circumstance, and the helicopters bringing them in and out - were very impressive, so I respected them. The fact that I believed they had strength and integrity only made it worse when they pronounced him guilty. Because the evidence I had been listening to surely couldn't lead to that verdict."

Back in England, Jane was also struggling. "I really wanted that conviction to be right," she admits. But try as she might for Flora's sake, she couldn't believe in it. Now, with another appeal and new evidence on the horizon, the couple feel the truth may be closer once again.

Lockerbie: a disgraceful episode for Scots law

[This is the headline over an article by Ian Bell that appeared in The Herald on 30 June 2007. It reads as follows:]

Sometimes, justice miscarries. Mistakes are made. The innocent pay a heavy price for innocent stupidity and duly we mourn those dull, collective human errors, our endless, fathomless fallibility. Sometimes.

At other times, legality becomes a lethal weapon. Everyone becomes a conspiracy theorist. Who did kill Jack Kennedy? A mere five words, but a big question. Who bombed Lockerbie? Just three words, but worth the asking, I think, for the sake of 270 dead in a shower of falling corpses over a corner of Scotland.

Someone - the eternal "they" - ignited an aircraft over my small country. They then attempted to hinder an investigation, prevent a trial and sought to keep the bereaved from the truth. They, the hag-ridden Foggy Bottom desk-jockeys, did not even plant the bomb. So who did?

Not many days ago, the First Minister of Scotland, Alex Salmond, was being accused of vote-grubbing because he suggested that an occupant of 10 Downing Street was trading prisoners without the consent of the Holyrood parliament. Not for the first time, mass murder and diplomacy appeared to be in conflict. Salmond, they said, was "picking a fight" with London. Over mass murder?

He's glib, but not that glib. I'm glib, too, but I can write a bit, sometimes. If the Scottish Criminal Cases Review Commission has concluded that the conviction of Abdelbaset Ali Mohmed al-Megrahi is "unsafe" what, exactly, is going on?

This is the man's second appeal. This is merely the latest confirmation that an £80m "Scottish" trial in the Netherlands was rigged. This is still more proof that Iran/Syria did the job, as was always obvious. This is the proof, if you needed such, that you live in a comatose colony of the United States of America, with justice for all.

Grow up. Lockerbie was traded away as necessary barter when Gulf War I mattered most to the ruling party in Washington. Afterwards, it became a mere nuisance. Who planted the bomb and slaughtered all those people? Who - and I offer the merest gloss of the cruel official paraphrase - cares?

Another device has just turned up in London, as I write. It is, might have been, a big one, tucked into a nice, big, unassuming car. He bombs us; we bomb him; so civilisations clash. It is intended to be understood as a lesson. Welcome to the job, Mr Brown.

But is that how it really is, or ever was? You cannot argue with a very large explosive device. I saw bleeding Omagh on the morning after: I am not actually naive. I do wonder, though, about the political uses of terror, or rather about the political utility of ignorant fear. They like us to be worried.

Lockerbie was not designed by one of Tony Blair's "implacable foes". Bin Laden, far less Libya and the poor sap, Ali Mohmed al-Megrahi, had nothing to do with it. The atrocity was a trading of blows, diplomatically-speaking, and meant to be understood as such by people who mean to matter, after America "accidentally" brought down an Iranian passenger jet. Just the 270 dead in Scotland, then.

This is how they run your world. Your faiths and allegiances are entirely incidental. The real point about Lockerbie is that it happened above and inside a very small country that did not have the means to object, or to respond. The "integrity of the Scottish legal system", once co-respondent in the birth of the European Enlightenment, was treated as a joke. Is it to remain a joke?

Let's see. When the criminal cases review commission detects the possibility of legal discomfort for the body politic, it is saying, in effect, that a conviction stinks.

It's lousy. The commission has spent years on this case and it reports, at your considerable expense, that Scots law cannot begin to digest the conviction of Abdelbaset Ali Mohmed al-Megrahi. Where now?

Salmond, First Minister, has said a very few words. The apparatus of the Scottish state will not expand on those, when last I checked. Legally, things are very tricky, possibly by design. But the worst terrorist atrocity in our history should count for more than a squabble between Edinburgh and London. A few CIA men in a Scottish court, with their past and present masters in tow, might suffice.

Don't hold your breath, though. It is a truly shocking thing to say about the Lockerbie carnage, but that slaughter was a mere glimpse of how this world is run. Oddly - a plot may be involved - I didn't need a conspiracy theorist to tell me as much. Why will the al-Megrahi case refuse to go away? Why will no-one answer the questions? Why is Scots law debased? Why, for that matter, are "improvised explosive devices" being found on the streets of London?

This space is reserved for an "essay". I take it to mean that I should provide more than the usual comment. I take that to suggest I should attempt a meaning, if any, in Mr al-Megrahi's inevitable return to court, what it implies for Scottish justice and what it says about the British state.

The former would be better off without the latter. An innocent man would have done better under a real democracy than in our version of a civic society.

And London bombs may yet speak for themselves.

Risk an idea. Ask yourself if the horror of 9/11 did not, in fact, begin over Lockerbie. Then ask yourself why either horror was imaginable, or imagined.

Ask yourself what is being done in your name. In London, glib as I could ever manage, the revisionists these days mock the notion. They think "Not in My Name" is funny. I've h eard them laugh.

So who murdered the Lockerbie innocents? As well, ask who put a pair of 20-year-olds from Fife into a British uniform, in someone else's country and invited a sacrifice for no reason I could name.

That was this week: history already. My fumbling point is that these things are connected. If you need an essay on the dignity of Scots law, think of our security state and our traditions of jurisprudence. Are we truly at war? With whom? Why? By which Act of either parliament?

Justice miscarries, sometimes. Cops and lawyers and courts get it wrong, now and then. Those same fallible people spend many days protecting the rest of us from ourselves.

But the case of Abdelbaset Ali Mohmed al-Megrahi is an example of a system corrupted, for base political ends, by people who do not take your democracy seriously.

He didn't do it. No-one with a straight face thinks otherwise.

The Americans, the Iranians, Gaddafi, the Syrians and some pensionable suits in Whitehall can supply the details.

So Salmond picks a fight with London? Not exactly. For now, our executive is very circumspect. It needs, so it believes, to take care. But as this case continues to unravel, a robust political exchange, as such things are known, may become unavoidable.

The atrocity happened on our soil. Our national legal system was somewhat compromised. Scotland was wounded, then insulted, then treated as a colony's colony.

I don't think I've used the word too often before, but the al-Megrahi case is a disgrace.

Irreparable damage to the rule of law in Scotland

[On this date in 2007 Professor Hans Köchler issued a statement on the decision by the Scottish Criminal Cases Review Commission to refer the conviction of Abdelbaset Megrahi back to the High Court of Justiciary for a further appeal. It reads as follows:]

Dr Hans Köchler, President of the International Progress Organization (IPO) and Head of the Dept. of Philosophy at the University of Innsbruck, Austria, served from 5 May 2000 until 14 March 2002 as international observer at the Scottish Court in the Netherlands ("Lockerbie Court"). He had been nominated by the Secretary-General of the United Nations,  Mr Kofi Annan, on the basis of Security Council resolution 1192 (1998). Dr Koechler issued two comprehensive analytical reports after the Trial (3 February 2001) and after the Appeal (26 March 2002) respectively, which the International Progress Organization submitted to the United Nations.

In his reports, Dr Köchler was highly critical of the proceedings and questioned the fairness and impartiality of both the Trial and Appeal Courts. In an interview for the BBC on 14 March 2002, he described the dismissal of the appeal as a "spectacular miscarriage of justice" (BBC News World Edition). At the time, the Scottish judicial establishment had tried to dismiss Dr Köchler's conclusion as a misunderstanding of the Scottish judicial system. The decision of the Scottish Criminal Cases Review Commission (SCCRC) to refer the case of Abdelbaset Ali Mohamed Al Megrahi back to the Scottish High Court of Justiciary has - after additional investigations lasting more than five years - confirmed Dr Köchler's original concerns. In particular, the SCCRC had doubted the credibility of one of the key witnesses, Maltese shop owner Tony Gauci, stating in its News Release of 28 June 2007 "that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items [clothes that were found in the wreckage of the plane] from Mary's House [in Malta] took place on 7 December 1988." Exactly this point had been stated in some detail by Dr Köchler in his appeal report of 26 March 2002 (!) (Paras 10, 15 and 16).

However, in interviews conducted yesterday by representatives of the Scottish, British and German media, Dr. Koechler expressed his surprise at the Commission's focus of review and apparent bias in favour of the judicial establishment: "In giving exoneration to the police, prosecutors, and forensic staff, I think they show their lack of independence. No officials to be blamed, simply a Maltese shopkeeper." (The Herald, Glasgow, 29 June 2007)

****

The decision, announced by the Scottish Criminal Cases Review Commission (SCCRC) on 28 June 2007, to refer Mr Al Megrahi's case back to the High Court of Justiciary has been long overdue and has created the chance for a second legal evaluation by an Appeal Court of five Scottish judges.

It is to be hoped that, in view of the far-reaching political implications and international ramifications of the case, this time the judges will act in full independence and that the proceedings will meet the standards of fair trial under the European Convention for the Protection of Human Rights and Fundamental Freedoms. If this final chance to put things right and conduct criminal proceedings in a fair and fully transparent manner is missed, irreparable damage will be done to the rule of law in Scotland and to the principle of "devolution" of important areas of public administration from the United Kingdom level to that of Scotland.

The undersigned would like to restate the point he made in his appeal report in 2002, namely that the final arbiter of the fairness of Scottish criminal proceedings (after all means of review in the domestic context have been exhausted) is the European Court of Human Rights (Strasbourg) that exercises its jurisdiction on the basis of the European Human Rights Convention.

Regrettably, the SCCRC has not disclosed all its grounds of referral and, in its news release of 28 June, has basically concentrated on the dubious role of Maltese witness Tony Gauci - while at the same time engaging in a rather strange exercise of "preventive exoneration" of certain people belonging to the British and/or Scottish police and judicial system whose behaviour, as pointed out in the undersigned's reports and confirmed, in the meantime, in several affidavits, has been highly questionable and may have detrimentally affected the fairness of the proceedings (see IPO News Release of 14 October 2005). It is particularly difficult to comprehend why the SCCRC would take great pains to "absolve" Mr Megrahi's defense team during the trial and first appeal from any criticisms in regard to their performance in the interest of their client (para 4.1 of the News Release of the SCCRC). The lack of integrity of the defense was obvious to the undersigned during the two years he observed the proceedings at Camp Zeist in the Netherlands and was the object of a conversation of the undersigned with the appellant (Mr Megrahi), arranged, at the latter's request, by the Scottish Court Service at HM Prison Zeist.

In view of the flawed trial and appeal proceedings, now acknowledged, at least in part, by the Scottish Criminal Cases Review Commission, and for the sake of transparency, the report of the Commission should be made public in its entirety. The victims' families as well as the international public deserve to know the full truth about the reasons of referral of Mr Al Megrahi's case back to the High Court of Justiciary.

In conformity with the principle of transparency of the proceedings that was guiding United Nations Security Council resolution 1192 (1998) (operative para 6), the proceedings of the Scottish Appeal Court should again be witnessed by international observers.

The undersigned renews his call for a full and independent public inquiry of the Lockerbie case and its handling by the Scottish judiciary as well as the British and US political and intelligence establishments. In order to avoid bias, such an investigation will require the participation of additional legal experts, to be appointed by the United Nations Organization, from countries that are not involved in the Lockerbie dispute.

Those politicians in the United Kingdom and the United States who have proclaimed an international "war on terror" will not be credible in their strategy if they prevent a full investigation into the causes of the explosion of Pan Am flight 103 over Lockerbie. All those responsible, without exception,  must be brought to justice.

(signed) Dr Hans Köchler

• Dr Hans Köchler's Trial Report of 2001
• Dr Hans Köchler's Appeal Report of 2002
• Hans Köchler and Jason Subler (eds), The Lockerbie Trial. Documents Related to the IPO Observer Mission

‘‘We brought in the CIA... the Scots… MI5”

[What follows is excerpted from a long article headlined How Donald Trump Misunderstood the FBI that was published yesterday in The New York Times Magazine:]

President George W Bush [chose] Robert Mueller as the sixth director of the FBI.

Born into a wealthy family, Mueller exemplified ‘‘the tradition of the ‘muscular Christian’ that came out of the English public-school world of the 19th century,’’ Maxwell King, Mueller’s classmate at St Paul’s, the elite New England prep school, told me. Mueller arrived at FBI headquarters with a distinguished military record — he earned a bronze star as a Marine in Vietnam — and years of service as a United States attorney and Justice Department official. It was a week before the Sept 11 attacks, and he was inheriting an agency ill suited for the mission that would soon loom enormously before it. Richard A Clarke, the White House counterterrorism czar under Clinton and Bush, later wrote that [Louis] Freeh’s FBI had not done enough to seek out foreign terrorists. Clarke also wrote that Freeh’s counterterror chief, Dale Watson, had told him: ‘‘We have to smash the FBI into bits and rebuild it.’’

Mueller had already earned the respect of the FBI rank and file during his tenure as chief of the criminal division of the Justice Department. When he started work at the Justice Department in 1990, the FBI had been trying and failing for two years to solve the bombing of Pan Am Flight 103 over Lockerbie, Scotland. ‘‘The FBI was not set up to deal with a major investigation like this,’’ Richard Marquise, an FBI intelligence analyst who became the leader of the Lockerbie investigation under Mueller, said in an FBI oral history. ‘‘I blame the institution.’’

Mueller used his power under law to obliterate the FBI’s byzantine flow charts of authority in the case. ‘‘We literally cut out the chains of command,’’ Marquise said. ‘‘We brought in the CIA. We brought the Scots. We brought MI5 to Washington. And we sat down and we said: ‘We need to change the way we’re doing business.... We need to start sharing information.’ ’’ It was a tip from the Scots that put Marquise on the trail of the eventual suspect: one of Col Muammar el-Qaddafi’s intelligence officers, whose cover was security chief for the Libyan state airlines. Qaddafi’s spy, Abdel Basset Ali al-Megrahi, was indicted in 1991. It took until the turn of the 21st century, but he was convicted.

It meant a great deal to Mueller, in the Lockerbie case, that the evidence the FBI produced be deployed as evidence in court, not justification for war. In a speech he gave at Stanford University in 2002, concerning the nation’s newest threat, he spoke of ‘‘the balance we must strike to protect our national security and our civil liberties as we address the threat of terrorism.’’ He concluded: ‘‘We will be judged by history, not just on how we disrupt and deter terrorism, but also on how we protect the civil liberties and the constitutional rights of all Americans, including those Americans who wish us ill. We must do both of these things, and we must do them exceptionally well.’’

On evidence as weak as this how could trial court find Megrahi guilty?

[Ten years ago today the Scottish Criminal Cases Review Commission referred the conviction of Abdelbaset al-Megrahi back to the High Court of Justiciary. At the time, the only information that came into the public domain was contained in a press release issued by the SCCRC. That information formed the basis of an article that I wrote a few days later. It reads as follows:]

On 28 June 2007 the Scottish Criminal Cases Review Commission referred Abdel Basset Al-Megrahi’s conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, to the Crown and to the High Court) extends to over 800 pages, accompanied by thirteen volumes of appendices. The Commission, in the published summary of its findings, rejected submissions on behalf of Megrahi to the effect that evidence led at the trial had been fabricated and that he had been inadequately represented by his then legal team, but went on to indicate that there were six grounds upon which it had concluded that a miscarriage of justice might have occurred. Strangely enough, however, only four of these grounds are enumerated in the summary. They are as follows:

“A number of the submissions made on behalf of the applicant challenged the reasonableness of the trial court's verdict, based on the legal test contained in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Commission rejected the vast majority of those submissions. However, in examining one of the grounds, the Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House, took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.

“New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in thearea of Sliema in which Mary's House is situated. In the Commission's view,taken together with Mr Gauci's evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant was in Malta.

“Additional evidence, not made available to the defence, which indicates that four days prior to the identification parade at which Mr Gauci picked out the applicant, he saw a photograph of the applicant in a magazine article linking him to the bombing. In the Commission's view evidence of Mr Gauci's exposure to this photograph in such close proximity to the parade undermines the reliability of his identification of the applicant at that time and at the trial itself.

“Other evidence, not made available to the defence, which the Commission believes may further undermine Mr Gauci's identification of the applicant as the purchaser and the trial court's finding as to the date of purchase.”

The implications for the verdict of guilty

The reasons given by the Commission for finding that a miscarriage of justice may have occurred in this case are not limited to the effect of new evidence which has become available since the date of the original trial and the non-disclosure by the police and prosecution of evidence helpful to the defence. The prima facie miscarriage of justice identified by the Commission includes the trial court’s finding in fact on the evidence heard at the trial that the clothes which surrounded the bomb were purchased in Malta on 7 December 1988 and that Megrahi was the purchaser. This was the very cornerstone of the Crown’s case against him.   If, as suggested by the Commission, that finding in fact had no reasonable basis in the evidence, then there is no legal justification whatsoever for his conviction by the trial court.

The implications for the Scottish criminal justice system

The present writer has always contended that no reasonable tribunal could have convicted Megrahi on the evidence led at the trial.   Here is just one example of the trial court’s idiosyncratic approach to the evidence. Many more could be provided.

A vitally important issue was the date on which the goods that surrounded the bomb were purchased in a shop in Malta. There were only two live possibilities: 7 December 1988, a date when Megrahi was proved to be on Malta and 23 November 1988 when he was not. In an attempt to establish just which of these dates was the correct one, the weather conditions in Sliema on these two days were explored. The shopkeeper’s evidence was that when the purchaser left his shop it was raining so heavily that his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi. The unchallenged meteorological evidence led by the defence established that while it had rained on 23 November at the relevant time, it was unlikely that it had rained at all on 7 December; and if there had been any rain, it would have been at most a few drops, insufficient to wet the ground.  On this material, the judges found in fact that the clothes were purchased on 7 December.

On evidence as weak as this how was it possible for the trial court to find him guilty? And how was it possible for the Criminal Appeal Court to fail to overturn that conviction?   The Criminal Appeal Court dismissed Megrahi’s appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court’s factual findings at all (though it is clear from their interventions during the Crown submissions in the appeal that at least some of the judges were only too well aware of how shaky certain crucial findings were and how contrary to the weight of the evidence).

It is submitted that at least part of the answer lies in the history of the Scottish legal and judicial system. For centuries judges have accorded a specially privileged status to the Lord Advocate.   It has been unquestioningly accepted that, though a political appointee and the government’s (now the Scottish Executive’s) chief legal adviser, he (now, of course, she) would at all times, in his capacity as head of the prosecution system, act independently and without concern for political considerations and would always place the public interest in a fair trial above the narrow interest of the prosecution in gaining a conviction. This judicial vision of the role of the Lord Advocate was reinforced by the fact that, until the Scottish Judicial Appointments Board commenced operations in 2002, all Scottish High Court judges (and sheriffs) were nominated for appointment to the Bench by the Lord Advocate of the day. This meant that, in all criminal proceedings, the presiding judge owed his position to the person (or one of his predecessors in office) who was ultimately responsible for bringing the case before him, and for its conduct while in his court.

The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism -- indeed casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction. To illustrate this in the context of the Lockerbie trial it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the United States under a witness protection programme.

Giaka’s evidence was ultimately found by the court to be utterly unworthy of belief.  This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony.  Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been immensely more difficult and perhaps impossible.

Yet the Crown strove valiantly to prevent the defence obtaining access to these cables.

At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC,   stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.

Mr Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way. Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid… On all of these matters, the learned Advocate Depute reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."

One of the judges, Lord Coulsfield, then intervened: "Does that include, Lord Advocate ... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"

The Lord Advocate replied: "Well, I'm just checking with the counsel who made that -- there is nothing within the -- -- there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters."

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety. Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

Beyond the Lockerbie trial, the failure of the Crown to place the public interest in a fair trial above the interest of the prosecution in obtaining convictions is illustrated by the extent to which the Lord Advocate has recently had to be dragged, kicking and screaming, through the Privy Council in London before making available to the defence material in the prosecution’s possession that no-one could conceivably deny was of relevance and assistance in the accused person’s defence: see Holland v HMA 2005 SCCR 417;   Sinclair v HMA 2005 SCCR 446. So much for the fairness of the trial being the Crown’s primary and predominant motivation!

“When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.” (I Corinthians xiii. 11) It is high time for all involved in the Scottish criminal justice system to put away childish things. All of us, judges included, are surely too old to believe any longer in fairy tales. Fairy tales can be convenient and comforting and can bolster our self esteem. But, as in the case of the belief that the Crown can uniformly be relied upon always to act selflessly in the public interest, they can be dangerous and, if acted upon, work terrible injustice.

It is submitted that the Lockerbie case demonstrates just how necessary it is, if public confidence is to be maintained, for the Scottish Executive to institute a high-powered, independent, investigation into all three aspects -- investigation, prosecution and adjudication -- of the Scottish criminal justice system.

[RB: The full text of the SCCRC’s 2007 Statement of Reasons is now in the public domain. It can be read here.]

What did the Crown Office know and when did it know it?

[What follows is excerpted from a letter written by Dr Jim Swire to the Lord Advocate (at the time Elish Angiolini QC) that was reproduced on this blog on this date in 2009:]

In the early morning of 21 December 1988, there was a break-in at Heathrow airport, as discussed in the first appeal at Zeist. This break-in gave access to an unknown individual to ‘airside’, through a breech in the night security cordon in terminal 3. The first appeal court accepted that that was the case.

As I understand it the break-in point was close to the facility given over to Iran Air and to that of the baggage assembly shed, where baggage container AV4041 was part loaded on the evening of 21 December.

The evidence about this break-in had ‘disappeared’ for 12 years before Manly caused it to be raised.

This had the bizarre effect of meaning that during the trial, Luqa airport Malta was alone put forward as the airport of origin for the ingestion of the IED, though there was total absence of evidence as to how Megrahi was supposed to have breached security there. A lacuna which their Lordships described as a serious difficulty for the Crown case.

Yet during the trial Heathrow airport lacked sufficient supporting evidence to be considered as the point of ingestion in the main trial, since the break-in was unknown to their Lordships.

By the time the evidence about Heathrow did surface, the verdict had been reached, and the defence had long abandoned their ‘incrimination’.

Once the appellant in the current appeal had been found guilty, it became immediately justifiable to deny him the ‘presumption of innocence’, to which accused but untried people are entitled. Indeed, ever since the verdict he has been described of course either as ‘the Lockerbie bomber’ or ‘the man found guilty of the Lockerbie bombing’. From this different world of presumed guilt, it is difficult to imagine a scenario suggesting that his proven movements and his use of false passports etc bore no relation to the Lockerbie disaster.

Now the information about this break-in was simply not available to the trial court nor the defence in the main trial at Zeist, only becoming known in time for the first appeal, where it was examined against the background of ‘proven guilt’ and did not of course cause the verdict to be overturned.

It seems quite extraordinary that this information was not available sooner to the trial nor to our Fatal Accident Inquiry in 1990.

If the defence in the main trial had known of it, they might well have pursued their defence of ‘incrimination’ with a great deal more determination than they did in fact show.

The reason for that speculation is that they were to have promoted the use of a (Syrian based) PFLP-GC IED. These devices were specifically designed for introduction into an airport well in advance of their use, being stable indefinitely at ground level. On the other hand if placed within the fuselage of an airliner they were designed to explode around 40 minutes after take-off without any intervention being required at any point, other than their placement within the aircraft. As I’m sure you know, the Lockerbie flight lasted for 38 minutes.

Thus the break-in situation at Heathrow with a plane exploding 38 minutes after taking off from there, was a textbook description of how the PFLP-GC devices were designed to work, as had been explained to the main trial court by Herr Gobel of the West German forensic service. Hence it would have been a huge encouragement to the defence incrimination hypothesis.

Evidence was led in the first appeal that the Heathrow guard (the late Mr Manly) who gave this information to the defence after the verdict had been passed had been interviewed by both the Met’s anti-terrorism branch and the police, and had entered the details of his discovery in the Heathrow night security log immediately.

It is therefore very difficult to see how the Crown Office could have been in ignorance of it.

In his remarks to the first appeal court, concerning the break-in evidence, Mr Taylor (for Megrahi’s defence) said (from transcripts Pages 11085/6):

'No production or statement was made available

to or discovered by the Defence in the course of the

preparation for this trial gave any notice of the

existence of Mr. Manly or the evidence which it turns

out he is able to give. There was no reasonable basis,

in my submission, for the Defence anticipating that it

would turn out that there had been a breach of security

at the baggage build-up area at Heathrow Airport.

'The circumstances of this case are rather

special. The Defence was informed by the Crown that

14,000 witness statements had been taken in the course

of its inquiry. Defence preparations began more than

10 years after the event. The police had fully

investigated matters at Heathrow in the immediate

aftermath of the disaster. The Crown had prepared for

and conducted a Fatal Accident Inquiry in 1990. The

Defence were heavily dependent on the assistance from

the Crown in preparing for trial.

'The Crown had indicated at an early stage

that it would approach the issue of disclosure in

accordance with the principles laid down by Your

Lordships' court in the case of McLeod and that if

possible it would go further than McLeod to assist the

Defence.

'Since it can be taken that the Crown with all

its resources and access to information did not uncover

this evidence in preparing for trial, it would seem

that it would be unreasonable to expect that the

Defence would have guessed that such evidence might

exist and to discover witnesses who were unknown to it.'

Mr Taylor made the assumption that the Crown knew nothing of this matter. On the other hand partial or non-disclosure of relevant material to the defence by the Crown was one of the referral reasons given by the SCCRC as to why there might have been a miscarriage of justice in this case.

For the moment we must avoid harming the appeal process, but there seems no reason why a search should not be made of the copious documents in possession of the Crown to see whether they did in fact have evidence of this break-in. If they have, we need an explanation of why they did not pass it to the defence; if there is no record of them having heard of this evidence then an explanation for that should be sought..

The effect of the absence of the information about the Heathrow break-in was not confined to the Zeist trial. In 1990 (the late) Sheriff Principal John Mowat told our Fatal Accident Inquiry that it must assume that the device had ‘come from Frankfurt’. No mention could be made of the situation at Heathrow, for that was hidden from that court.

I was one of only two relatives who decided to represent himself at the FAI. I did this because I was not satisfied with what I saw as the failure by lawyers representing the relatives to call witnesses and lead evidence requested by us, their clients. I was not alone in this, there was widespread distress among us about this.

During my contribution to the court, I concentrated upon the responsibility of Heathrow to examine hold baggage using the latest technology, but was denied the opportunity to return to the question of Heathrow security, by the Sheriff Principal on the grounds that that had already been covered by our ‘professional representatives’.

Had I known about the break-in, my submissions would have been almost exclusively about Heathrow perimeter security, terminal three night security in particular, and their amazing failure to close the airport pending discovery of who had broken in.

Thus the content of that court was misdirected (inadvertently, since Mowat presumably did not know about the break-in either).

Since I believe that had Heathrow behaved responsibly in the face of this break-in, at a time of heightened terrorist warnings, then my daughter might still be alive, the issue seems crucial to the ability of the FAI to determine accurately what factors contributed to the deaths.

Please will you urgently consider discovery of what, if anything, the Crown Office knew about the Heathrow break-in, and also the question of whether the Fatal Accident Inquiry should be reconvened, in view of this compromising of its purpose to discover all the factors contributing to the deaths. I do not see why this part of the issues raised herein cannot be urgently addressed, appeal or no appeal.

[RB: No useful reply was received.]