Stalinist thinking about the infallibility of police and prosecutors

[On this date in 2009, I posted on this blog an item headed That letter from the FBI to the Justice Secretary: is it real?  The first of its two sentences read simply “This is the heading over a devastating exposure by Jonathan Mitchell QC on his blog of the misconceptions and errors of fact and law in the letter from the Director of the FBI to Kenny MacAskill.” Mr Mitchell’s article reads as follows:]

My last post covered two issues; the hypocrisy of the attack on the decision to release Megrahi, and the law relative to compassionate release of prisoners in Scotland. But in linking these I noted in passing that much of the attack on MacAskill was simply ignorant, and wrote “FBI Director Robert Mueller, in his much-quoted open letter to MacAskill, obviously intended primarily for US domestic consumption, thought the Justice Secretary was a ‘prosecutor‘.“. That touched a nerve with one anonymous commenter, who wrote me a poison-pen message in the middle of which he stated:

The first paragraph of the FBI director’s letter he’s clearly putting it forth that he generally stays out of another jurisdiction’s case–in his experience as a prosecutor the cases of other prosecutors–though the phraseology might be a good target for a pendant punching above his weight class. Indeed, in the US and presumably Scotland, the prosecutor’s ultimate boss is the Attorney General of the US (or Justice Minister there). When the director talks about the effect of the release it is on terrorists in general and their conviction in a ‘…the conviction of trial by jury’. He obviously means it in a general sense or perhaps you’d have his sentence read something like ‘…the conviction of trial by jury–unless of course the crime is one that the statute allows the defendant to select a panel of judges or a judge instead–after the defendant is given all due process…’.

Now, I wouldn’t normally bother about poison-pen writers, but this made me go back to the letter to see if I had misread it. I didn’t. It contains glaring errors about the Lockerbie process. But what on reflection is interesting is that Robert Mueller is an extremely experienced lawyer who worked for many years on the Lockerbie prosecution, (although he was not, as the letter claims, ‘in charge of the investigation and indictment of Megrahi in 1991‘; that was the Lord Advocate). It seems inconceivable that he would not have known the truth; and I don’t believe he actually can have been as ignorant as I suggested. I apologise for that. I have to wonder if he actually wrote this letter, with its collection of howlers. Let’s look at what it says, and at the true facts.

The first weird statement is the one about staying out of another jurisdiction’s cases, to use the commenter’s re-hash. This is what Mueller wrote:

Over the years I have been a prosecutor, and recently as the Director of the FBI, I have made it a practice not to comment on the actions of other prosecutors, since only the prosecutor handling the case has all the facts and the law before him in reaching the appropriate decision.

Your decision to release Megrahi causes me to abandon that practice in this case.

Now, the ‘practice‘ he says he’s abandoning is the practice that he does not ‘comment on the actions of other prosecutors‘. But the Justice Secretary is not a prosecutor; he has nothing to do with the prosecution process. He is not the ‘prosecutor’s ultimate boss‘; that’s the Lord Advocate, whose constitutional independence of the Justice Secretary is fundamental to the system. Section 48 (5) of the Scotland Act states “Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.” 1. If the Justice Secretary tried to tell prosecutors what to do, or how to do it, he would be told to sling his hook; and vice versa. Robert Mueller knows this. He is not stupid. He worked with several Lord Advocates over many years. If Robert Mueller wrote the quotation above, he was telling a deliberate untruth. That seems strange. Why should he bother, just for a minor rhetorical flourish? It seems more likely that the author was some minion who shared the lazy assumption of my commenter that the Justice Secretary just had to be a prosecutor, because that’s the American system.

Now, later in the letter the same howler is repeated in different language:

You apparently made this decision without regard to the views of your partners in the investigation and prosecution of those responsible for the Lockerbie tragedy.

The Justice Secretary is not a ‘partner in investigation and prosecution‘, any more than he is a ‘partner’ of the accused or the defence. He is independent of both, as a judge is. Here again we see language that suggests a basic ignorance of the separation of powers.

There’s another error which I didn’t mention, the reference to ‘conviction by jury‘, which Anonymous nevertheless identifies and defends:

Your action gives comfort to terrorists around the world who now believe that regardless of the quality of the investigation, the conviction by jury after the defendant is given all due process, and sentence appropriate to the crime, the terrorist will be freed …

It seems obvious from this language that its author thought Megrahi was convicted ‘by jury‘. But Mueller knows as well as Megrahi himself that he was not. He sat through much if not all of the trial. Here, again, it seems extraordinary that for a pointless two words Mueller would write something which he knew perfectly well was wrong. Juries are fundamental to the American system (except, of course, for alleged terrorists), but surely Mueller knows they aren’t the norm in most countries affected by terrorism.

There are other errors, most notably the central fatuous and hysterical claim that the release will give comfort to terrorists: what will actually give them comfort is the Faustian pact of successive American and British governments to forgive the entire chain of command in the Libyan intelligence service and government so as to encourage business opportunities2. If you cheerfully sup with the devil, you… the reader can complete this sentence.

Yet neither Mueller nor the FBI have ever gone on record as critical of the decision of successive US administrations to grant amnesty and forgiveness to those who, they say, gave Megrahi his orders; to give them hospitality, trade with them, sell them military equipment.

So I have to ask: who actually wrote this letter? If it was Robert Mueller, he must have been on the juice, which may perhaps have been what Lord Fraser had in mind when he kindly suggested Mueller visit Scotland to ‘discuss some good whisky‘. If it was some underling, he didn’t do his homework.

Whoever it was, it was someone with the Stalinist thinking about the infallibility of police and prosecutors which coloured the UK governments strenuous efforts to keep the evidence in the recent appeal effectively secret, but in a less disguised form. Look at this:

… only the prosecutor handling the case has all the facts and the law before him in reaching the appropriate decision.

That’s the thinking that led to the founding of the Cheka in 1918. As Hector MacQueen pointed out, it’s the old chestnut that we don’t need courts or judges to “reach the appropriate decision“; still less any defence. The prosecution, after all, is infallible. No wonder then, perhaps, that the writer of this letter, whoever he or she may have been, was so appalled at anyone not following its instructions. Thus the complaint “You never once sought our opinion” on the release. As the Justice Secretary rightly pointed out in Parliament, however, in Scotland “we have separation of powers“. Someone in the FBI, however, does not believe in this.

There’s a phrase for this, and the phrase is ‘police state’.

1. See this description in a recent paper by the Judiciary on reform of the Lord Advocate’s status for a fuller analysis.
2. Musa Kusa, who the British government expelled in 1980 after he announced “The revolutionary committees have decided last night to kill two more people in the United Kingdom. I approve of this“, and who the CIA found had direct responsibility for the PanAm 103 bomb (and indeed many other murders), was in 2003 entertained by both governments in the Travellers Club in Pall Mall, London. The last time I was in the Travellers Club, I noticed the fine portrait of Lord Castlereagh half-way up the staircase. He was the Foreign Secretary of whom Shelley wrote in ‘The Masque of Anarchy’ ‘I met Murder on the way/He had a mask like Castlereagh/Very smooth he looked, yet grim/Seven bloodhounds followed him/All were fat, and well they might/Be in admirable plight/For one by one and two by two/He tossed them human hearts to chew/Which from his wide cloak he drew…‘ . Was the setting deliberate? Castlereagh would have been an appropriate host.

If the evidence was so flawed, why was Megrahi convicted?

[What follows is the text of an article published on the Daily Beast website on this date (BST) in 2011:]

There’s fresh trouble for Abdelbaset al-Megrahi. Amid a clamor of criticism, the Libyan convicted of the Lockerbie bombing was released from a Scottish jail two years ago, allowed home on compassionate grounds. After a diagnosis of terminal prostate cancer, he had been given just three months to live. Now the collapse of the Gaddafi regime has brought calls for Megrahi’s extradition to the United States or his return to prison in Libya.

For a vocal lobby in Washington, his freedom—and continuing survival—represent an affront that can at last be addressed. In the words of Sen. Kirsten Gillibrand: “Seeing him participate in good health at a pro-Gaddafi rally recently was another slap in the face not just for the families of the Lockerbie victims but for all Americans and for all nations of the world who are committed to bringing terrorists to justice.”

A tad overstated? Such rhetoric certainly won’t find universal support in Britain. Megrahi is far from friendless back in Scotland, where Pan Am flight 103 crashed in 1988 killing 270 passengers and residents of the small town of Lockerbie. Campaigners convinced of his innocence are pressing the Scottish parliament for an inquiry leading to a possible appeal that would clear Megrahi’s name.

And the roll-call of big-name supporters for the Justice for Megrahi group can’t be easily ignored. On the list: Nobel Peace Prize winner Archbishop Desmond Tutu; the head of the Catholic Church in Scotland, Cardinal Keith O’Brien; Jim Swire, the parent of a Lockerbie victim, and Professor Robert Black, the lawyer who devised the special court which tried Megrahi in the Netherlands in 2001.

One more backer, the leading lawyer Ian Hamilton, has blogged: “I don’t think there’s a lawyer in Scotland who now believes Mr. Megrahi was justly convicted."

The group insists there’s no case for extradition on legal grounds. Says Robert Forrester, secretary of the campaign: “Mr. Megrahi is a Scots prisoner released under license and still falls under Scots jurisdiction therefore and neither Washington nor Westminster has any jurisdiction under Scots law.” But he concedes that politics may determine his fate. “The man should be left alone to continue with his medical treatment but he has become such a pawn that I can’t believe that is going to happen.”

Campaigners have long fought to highlight what they see as serious flaws in the case against Megrahi, the only person ever convicted over the bombing. They point in particular to the contradictory testimony of the prosecution’s star witness, Maltese shopkeeper Tony Gauci, who claims to have sold Megrahi the clothes packed in the suitcase that carried the bomb. Gauci reportedly received a $2 million reward from the U.S. for giving evidence. Megrahi abandoned an appeal against his conviction so as to ease his release in 2009.

One frustration, says Forrester, is that the facts of the case are so little known to the public. “The problem is that so many people come to this from a basis of ignorance. We end up having arguments with people in the pro-trial camp who haven’t read the transcript or even the judgment.”

His own involvement dates from a chance encounter with a Libyan neighbor in Glasgow who needed help to start his car. Through his new acquaintance, Forrester, a retired language teacher who has worked in the Middle East, was asked to proofread a letter on behalf of a Libyan student group in the city to Scottish First Minister Alex Salmond calling for the Megrahi’s release on compassionate grounds.

If the evidence was so flawed, why was Megrahi convicted? Forrester won’t endorse conspiracy theories or suggestions of political interference, but he’s ready to speculate on unconscious motives. “This was the most high-profile case ever to come before a Scots court. Perhaps at the back of the mind of the judges was ‘if we can’t get any conviction out of this incredibly high profile trial of this it will be hugely embarrassing.’ If ever the case returns to court, acquittal could prove far more embarrassing.

No-one really wants the Lockerbie files reopened

[What follows is the text of an article by Alex Massie that was published in the Coffee House column in The Spectator on this date in 2009:]

There’s no need for me to take pro-American lessons from anyone but that doesn’t mean I necessarily or secretly want to be American. That can’t be said of everyone on the British right. Take Douglas Carswell for instance. The MP for Harwich and Clacton is deeply upset by the Scottish government’s decision to free Abdelbaset Ali al-Megrahi on compassionate grounds. That’s his right.

What’s odder is that he seems to be more upset by the fact that the Americans are upset than by anything else. In one post he suggested that the US ban those responsble for freeing Megrahi from entering the United States. In another, he asks "Is Britain a Reliable Ally?" and suggests that, actually, she’s not and that what’s needed is a set of policies that will tie the United Kingdom still more closely to the United States. Carswell, in fact, seems to agree with some of the more extreme elements on the American right that Britain is done for and no longer worth considering a useful, let alone a reliable, ally.

I imagine Carswell thinks that his favoured policies would be good for Britain and only incidentally good for the United States. But he gives the impression, perhaps unintentionally, that it’s the other way round. That is, Britain should follow policies that demonstrate it is a reliable ally of the US. If that also benefits Britain then that’s all to the good but it’s not necessary.

Perhaps this is an unfair interpretation of his position. Nonetheless, there are some British rightists who really do view everything through a filter marked What will the Americans think?

Not much, in this instance. Sure, there’s been some official outrage (though, as I’ve said before, no-one really wants the Lockerbie files reopened and that includes the Americans) and there’s been some disappointment, nay anger, expressed. But Lockerbie has not, to put it mildly, been the talk of the American blogosphere. Nor has "old media" been much exercised by it. for instance, the word Lockerbie has not appeared on the New York Times’ editorial or opinion pages since Megrahi was released.

[RB: Here is what I wrote on an earlier occasion about the real US Government attitude towards Megrahi’s repatriation:]

The implications [of repatriating Megrahi by means of prisoner transfer] had, of course, already been seen on this blog: Britain accused of breaking promise to US over Abdel Baset Ali al-Megrahi and Foreign Office told Scotland it made no promises to US over how long Megrahi would stay in prison.

The reason why the "promise" was not taken seriously by the UK Foreign Office was that the only country that might have an interest in complaining if it was broken was the United States of America. And both the United Kingdom government and the Libyan government knew (because -- as Libyan officials informed me -- they had checked) that Washington was relaxed about Abdelbaset Megrahi's repatriation, though it would have to huff and puff for US public consumption when it happened.

When Kenny MacAskill rejected the application for prisoner transfer his principal reason for doing so was the undertaking contained in the “initiative” that led to the Zeist trial that, if convicted, the suspects would serve their sentence in the UK. Of course, if it had been accepted by the Libyan Government that transfer of Megrahi to a prison in Libya was simply not possible under the terms of the “initiative” (and I did my very best to convince them) no prisoner transfer application would have been made and, in consequence, abandonment of Megrahi’s appeal would not have been necessary when, later, his application for compassionate release was lodged. The prisoner transfer application may have been -- indeed, was -- doomed from the outset, but it served the interests of the United Kingdom and the United States very well by ensuring the abandonment of Megrahi’s appeal.

Neutral venue Lockerbie trial accepted by UK and USA

[On this date in 1998 the governments of the United Kingdom and the United States, succumbing to international pressure, announced that they had reversed their stance on the matter of a "neutral venue" trial, such as I had proposed (and the Libyan Government, and the Libyan lawyer for Megrahi and Fhimah, had accepted) in January 1994. What follows is the text of a report published on the website of The Independent on the evening of 24 August:]

Britain and the United States took the unprecedented step yesterday of agreeing to hold a special trial in The Hague, under Scottish law, to bring to justice the alleged terrorists behind the Lockerbie bombing.

In a U-turn by the two governments, the Foreign Secretary, Robin Cook, said the decision to hold the trial in a neutral country 10 years after the bombing of PanAm 103, killing all 259 on board and 11 on the ground, should be seen as a signal to other terrorists responsible for the attacks on the US embassies in East Africa that "however long it takes, they will be brought to justice".

The trial could take place by next May, but there was widespread scepticism at the highest levels of Government that Colonel Muammar Gaddafi would surrender the two suspects for trial - Abdul Basset al-Megrahi and al- Amin Khalifa Fhimah - despite repeated Libyan demands for a trial in a neutral country, such as the Netherlands.

"I cannot answer for Colonel Gaddafi. His government has said they would accept a trial by a Scottish court with Scottish judges. If they choose not to take up that offer, it will very severely undermine the credibility that they will have for making that undertaking earlier this year," said Mr Cook. He added that sanctions against Libya could be lifted the moment the two accused were handed over for trial. The terms were not negotiable. The Lord Advocate, Lord Hardie, said the two could not be tried in their absence. There will be extradition proceedings, and, if they submit themselves for trial, a full committal procedure with a trial by three Scottish judges under full Scottish law held within 110 days.

They would be held "in a special facility" in The Hague by Scottish prison officers until the trial, and if found guilty, would serve their sentence in Scotland. Lord Hardie rejected calls for an international court, with a presiding Scottish judge, "because there is no body of international criminal law and procedure under which it could operate".

The move won support from Lord Fraser of Carmyllie, Tory Lord Advocate at the time of the bombing. He said that,10 years on, "the anguish of the relatives of all those who died in the tragedy and the way that conspiracy theories have proliferated" dictated holding a trial.

Families of the victims welcomed the decision. Jim Swire whose 23-year- old daughter, Flora, died on flight 103 on 21 December 1988, was "euphoric". He said: "Anyone in their right mind would welcome this decision." Mr Swire, the spokesman for the UK Families Flight 103 group, said: "This is something that our group have been working for six years for."

Alistair Duff, Scottish lawyer for the two Libyans, said the issue of the judges was not insurmountable. But Mr Duff told BBC Radio the men would need various reassurances, such as the condition of their custody and access to lawyers before agreeing to leave Tripoli.

Until recently the British and American governments maintained that the Libyans must be handed over for trial in Britain or the United States.

The US Secretary of State, Madeleine Albright, announcing the joint proposal in Washington, called for Libya to end its "10 years of evasion". She said: "We now challenge Libya to turn promises into deeds. The suspects should be surrendered for trial promptly."

The United Nations Secretary-General, Kofi Annan, welcomed the joint initiative and offered the UN's services to arrange the transfer of the accused men to the Netherlands, if Libya agreed. Details of the proposed compromise were to be given to Tripoli by Mr Annan.

The US and Britain are expected to submit the draft of a new resolution to the UN Security Council that will envisage an end to international sanctions against Libya if it agrees to surrender the accused men for trial.

[RB: The UK/US government statement is contained in a letter to the UN Secretary-General. It can be read here.]

People in authority who are relying on Lockerbie fatigue

[What follows is the text of an article by Christine Grahame MSP headlined Al-Megrahi is home. And he is innocent that was published in The Independent on this date in 2009:]

I became involved with Abdelbaset Ali al-Megrahi quite by accident. Like many people I had been suffering from Lockerbie fatigue. For me, and for you, I suppose, life had moved on from that horrendous crime over 20 years ago and the imprisonment of the Libyan murderer. That was that.

At least it was, until I agreed, by chance, to sponsor the showing of a Dutch documentary about the Lockerbie bombing at Parliament. I invited all MSPs and researchers, and indeed the press corps, to see this film. One MSP and one member of the press came, and I really only saw it because I felt obliged to attend. But that film changed my perspective. From that casual moment, and from much that I have learned since, I am convinced not only that Megrahi was not found guilty "beyond reasonable doubt", the test in Scots law, but that he is an innocent man.

He is not a saint, of course – he had a history with Libyan intelligence – but his hands are clean over Lockerbie. For you should recall that five months before the bombing of Pan Am flight 103 on that dark, wild December night just before Christmas in 1988, an American military cruiser, the Vincennes, shot down an Iranian passenger plane carrying 290 pilgrims. No one has been charged, let alone prosecuted, over that, even though it was all captured on film.

It is reasonable to deduce that when an American plane carrying, as some believed, military personnel back home to their religious festival, is blasted out of the sky, the finger of suspicion should not point first at Libya. Iran, maybe. However, Iran had to be kept on side because of the Iraq/Kuwait conflict. The Iran/Syria connection was soon dropped, and so Libya was indeed blamed. Here was a credible culprit.

To successfully frame a nation, pick one like Libya, in which all the baddies of the Middle East are personified in a recognisable hate figure like Gadhafi. If you want to frame a man, pick one with a feasible track record. Then first sell it to the world through the press and, hey presto!

But back to that film, which has not yet been seen here. After watching this disconcerting documentary, which challenged the reliability of key evidence, I got into conversations that night with Dr Jim Swire, with a forensic police scientist who had to label those bodies scattered across hundreds of acres of dark wintry hillside, with Father Patrick Keegans, the priest who lived in Sherwood Crescent (the only person who survived in that street) and with others. None of them supported the case against al-Megrahi.

Since then I have met the man at the centre of it all on several occasions. Our first meeting took place on a blustery morning some months ago. Afterwards I was confronted by a crowd of reporters who waited until I emerged one hour later from speaking to a man so detested, so reviled by many that death in prison from cancer would be too good for him.

He was sitting in front of a laptop, across the table in a room set aside of lawyers and their clients. His English was excellent and I remember trying to impress upon him that I was there for the duration, and not just this one visit. I told him that if I thought for one minute he was guilty I would walk out of the room. But he was intent on scrolling through the pages of the trial, pausing now and then to emphasise a point. Perhaps he was listening.

On subsequent visits we could go straight to the point, and deal with "prisoner transfer": to qualify he would have to abandon the appeal which could allow him to clear his name. We also talked more of his family and the growing need, as his health worsened, as it clearly was doing, to be with them. It was then that his composure was momentarily lost; the emotion and tension were tangible. But although his priority was to be with them in his last days, he told me he did not want his name to go down in history as the Lockerbie bomber. He told me, in short, that he did not do it. I told him again that I thought he was innocent.

Let me make one thing clear: I understand the hatred some feel for him, particularly the US relatives of the dead. It is, however, misplaced and it is in order to unravel for them the true story of Lockerbie, as much as to liberate an innocent man, that I and others worked hard for his compassionate release. This would have allowed the appeal process to be exhausted and evidence-led. The Scottish Criminal Cases Review Commission considered there was evidence vital enough for it to consider that there might have been a miscarriage of justice. That evidence, particularly relating to the identification of al-Megrahi linking him directly to the bombing has never and will now never be tested in a Scottish court.

My final meeting with him was on 23 July. He requested that it be private and I have kept my word till now. Apart from discussing his deteriorating health, increasing frailty and his family, we discussed at length his compassionate release. He wanted my advice. I told him I thought he had nothing to lose because if it was rejected he could abandon his appeal and take the prisoner transfer route. I advised him to consult his legal team.

The next day he applied for compassionate release. Stupidly, I thought there was a good chance that after his death at home his appeal could still be pursued, by his family. But, like al-Megrahi, I am a tiny cog in an elaborate mechanism. Last week he abandoned his appeal. His counsel advised the court that he believed that to do so would "assist" with his "applications".

The previous week I had received an email from a whistleblower in the Justice Department telling me that the Libyan officials were being told in no uncertain terms that he must drop his appeal or there would be no compassionate release.

Al-Megrahi was a desperate man, but I believe there are other desperate men and women – in the US Justice Department and in Whitehall, – all with their own reasons for wanting that appeal to be ditched. Now he is home, but he is still, officially, a guilty man.

Those who believe him guilty are crying foul. So are those of us who believe him innocent. And then there are those who are happily sipping their claret, their eyes on a comfortable unblemished retirement. As for any inquiry, that's out there in the long grass. They are people in authority who are relying on Lockerbie fatigue setting in again. It mustn't.

The legacy of Lockerbie

[This is part of the headline over an article published on the website of The Independent on this date in 2009. The following are excerpts:]

The saga of Abdelbaset al-Megrahi was already murky enough, but now, to the doubts about the evidence against him, the alleged multi-million payouts to the prime prosecution witness, and the far-from-told story of US and British intelligence involvement, we can add suggestions of secret talks and trade deals, and the possibility that his release was not done in the name of compassionate justice, but that of oil, financial services and hotel-building.

This weekend, suspicious minds don't have to seek very far for the material to construct explanations other than the official ones. There is the meeting in 2007 between Colonel Gaddafi and Tony Blair, then still Prime Minister. Oil and gas deals mingled with the fate of Megrahi (then yet to be diagnosed with cancer), according to the Libyans. There's the meeting between Gaddafi's son and Peter Mandelson in the inevitable setting of a Rothschild villa. The Duke of York, batting for Britain as ever, is involved. There may have been, say some sources, many more meetings between British and Libyan officials – something which, one might think, a simple release on compassionate grounds would not warrant. There are British business leaders now openly rubbing their hands together at the suddenly revitalised opportunity for UK banks, oil interests, security contractors, and stores to move in on Libya's considerable available funds.

And then, underpinning all these, is another conspiracy, the one it all started with – the fact that some group of people somewhere conspired to blow up Pan Am flight 103, and succeeded. Today, 21 years, millions of words of testimony, countless investigations, and a trial on neutral territory under Scottish law later, we are really none the wiser about who murdered Flora Swire, Theodora Cohen, Richard Monetti, Alistair Berkley, Bill Cadman and 265 other victims of Britain's worst terrorist atrocity. And so, given all that is now emerging, doubters of the official line ask: do our governments even want to know who planted the bomb? Do they, perhaps, think that a can of worms is best left unopened in the cause of pacifying former pariah states?

These, then, are the over-heated speculations that have bubbled up in the absence of hard, reliable facts, of which there has always been a shortage in this case. The situation, until last autumn was this: Megrahi, head of security for Libyan Airlines based in Malta, and tied to his country's intelligence services, had been convicted in 2001 on circumstantial evidence of planting the bomb which brought down the American plane over the Scottish village of Lockerbie in December 1988. An appeal was being prepared, and the Scottish Criminal Cases Review Commission had examined the evidence against Megrahi and found six grounds for a possible miscarriage of justice. The result of this could well have been the release of Megrahi, and avid calls for a re-opening of the case – the 2003 acceptance by Libya of responsibility for the bombing not withstanding.

But Megrahi had been feeling unwell, and in September last year he was taken from HMP Greenock to Inverclyde Royal Hospital for tests. A month later, he was diagnosed with prostate cancer. Meanwhile, the appeal process ground on, getting into court on 28 April this year in Edinburgh. A day later, a prisoner transfer agreement between the UK and Libya, negotiated by Tony Blair as part of thawing relations between the two countries, came into force. The Libyans duly made an application for Megrahi to be moved to a Libyan jail, thereby handing the hottest of legal potatoes to the Holyrood government.

But as Megrahi's cancer was declared terminal, the Libyan applied for release on compassionate grounds. It fell to the Scottish Justice Secretary, Kenny MacAskill, to decide on this. After representations – including the vehemently opposed ones of US Secretary of State Hillary Clinton and leading figures such as Senator John Kerry – he delivered his decision in 20 minutes on Thursday (...)

The reaction from relatives of US victims was unequivocal. Stan Maslowski of New Jersey, whose daughter Diane died on the flight, said: "This shows a terrorist can get away with murder." British families, meanwhile, were mainly supportive of Mr MacAskill. Martin Cadman, whose son Bill died in the bombing, said: "The trial was a farce. I think he was innocent." Anyone puzzled by this difference need look no further than the coverage of the case against Megrahi down the years. In Britain, doubts about the case against him have been long, and widely, aired. In the US, this has not been so. Thus, the extent of the compassion that people were prepared to extend to Megrahi was largely a matter of whether they felt he was guilty or innocent.

The case against him depended on the testimony of one Tony Gauci, a Maltese shop owner who says he sold Megrahi several items of clothing that were subsequently found to have been in the same case as the bomb. Mr Gauci was interviewed no fewer than 23 times by investigators, was alleged to have been coached by them, and subsequently said to have received payments of up to $2m from the US. Some, like former Scottish Lord Advocate Lord Fraser, say he is an unreliable witness ("not the full shilling", and "an apple short of a picnic" were his exact words). (...)

In the short term, a lot depends on Megrahi's illness. There must be many in Edinburgh and Westminster who will, without voicing such thoughts, be hoping his cancer runs its vicious course sooner rather than later. For if he were to survive much beyond three months, there would be many, especially in the US, pointing out that expedience, rather than compassion, was what really tempered British justice.

There is no evidence for such dealings, and so, in all likelihood, we will be left with only one true conspiracy: the one that caused it all – the one that sent 270 people to their deaths on a terrifying December night 21 years ago.

Megrahi’s return to Tripoli

[What follows is excerpted from a report published on the BBC News website on this date in 2009:]

The US and UK have reacted angrily to the welcome given in Libya to the Lockerbie bomber, freed from prison on compassionate grounds.

In the US, President Obama said the sight of Abdelbaset Ali al-Megrahi being greeted by a jubilant crowd in Tripoli was "highly objectionable".

UK Foreign Secretary David Miliband said Libya would face new scrutiny.

Muammar Gaddafi has yet to comment but the Libyan leader's son is said to have called the release a "victory".

US and UK authorities say they have warned Libya about the sensitivity of the issue. (...)

Hundreds of people turned out to meet Megrahi's plane as it landed in Tripoli, many waving flags.

Megrahi was met by Col Gaddafi's son, Seif al-Islam Gaddafi, who thanked both the Scottish and British governments for their "brave stance" although the British Government has insisted the decision to release Megrahi was a purely Scottish affair.

The younger Gaddafi added in his statement that there was a "considerable amount of new evidence" to show Megrahi was innocent.

In remarks carried by a Libyan TV channel on Friday, and reported by AFP news agency, Seif al-Islam Gaddafi described Megrahi's release as a "victory".

"Your liberation is a victory that we offer to all Libyans," he said in the footage apparently recorded on Thursday night as he accompanied Megrahi on the flight back from Scotland to Libya.

Megrahi's daughter Ghada told the BBC on Friday that her father was resting at home.

"He's at home with us, he's a bit tired and worn out because it was a slightly long trip for him," she told BBC World Service.

"He was overjoyed with seeing us all again."

Megrahi's elderly mother, his daughter added, was "very excited and happy to see him again".

[RB: There was considerable media outrage at what was characterised as a “hero’s welcome” accorded to Megrahi at Tripoli Airport. A corrective, penned by Saif al-Islam Gaddafi for The New York Times, can be read here.]

Mystery of Lockerbie plane bombing may never be solved

[This is the headline over a report published on the website of The Guardian on this date in 2012. It reads in part:]

The death of the only man to have been convicted of the Lockerbie bombing – when Pan Am flight 103 was blown out of the sky over Scotland in the week before Christmas 1988, means it is less likely than ever that the full story behind the outrage will be told.

Abdelbaset al-Megrahi who died in Tripoli on Sunday, two years and nine months after his release from a Scottish jail, always protested his innocence.

The 60-year-old, whose imminent death had been predicted on several occasions since his return to Libya, had, according to US and UK authorities been a Libyan intelligence officer as well as head of security for Libyan Arab Airlines and director of the Centre for Strategic Studies in Tripoli.

In November 1991, he and Lamin Khalifa Fhimah were indicted in the US and Scotland for the bombing which killed 259 passengers and crew on the Pan Am jet and 11 people on the ground. Libya refused to extradite them, though they were kept under arrest in Tripoli.

However, eight years later they were handed over after complex negotiations that led to their being prosecuted under Scottish law, at a court with three judges but no jury, in the Netherlands. In January 2001, Megrahi was convicted of 270 murders and jailed for life. Fhimah was acquitted.

The Libyan government paid $2.7bn (£1.7bn) in compensation and accepted responsibility for the actions of its officials while not admitting direct responsibility for the bombing. Megrahi was jailed first at Barlinnie, in Glasgow, and later at Greenock. His wife and children moved to Scotland too.

Years of legal wrangling followed, with an appeal rejected in 2002, and a £1.1m investigation by the Scottish Criminal Cases Review Commission (SCCRC) that found there were six grounds where a miscarriage of justice may have occurred.

A full appeal got under way in April 2009. But it was dropped suddenly the following August, two days before Megrahi was put aboard a plane to Tripoli. Climbing aboard the plane, he wore a white shell-suit to hide body armour. He had been transferred from prison in a bombproof vehicle accompanied by security officers, also wearing body armour and drawing enhanced danger pay.

International furore erupted over the release, with allegations it had been sanctioned by the UK government in order to secure more business and oil deals with the Gaddafi regime. Gordon Brown's administration was forced to admit it had known in advance of the release but that it had been a matter for the Scottish justice system. Nonetheless, David Miliband, then foreign secretary, made no apology for protecting business links with Libya. "With the largest proven oil reserves in Africa and extensive gas reserves, Libya is potentially a major energy source in the future", he told MPs at Westminster. David Cameron always said that Megrahi should have died in jail. (...)

While many relatives of Lockerbie victims remain convinced of Megrahi's guilt, there are some, particularly in Britain, who believe he is innocent.

John Ashton, Megrahi's biographer and author of Megrahi: You Are My Jury, said: "I think there will be moves to reopen the appeal. That has yet to be decided. I would very much hope that his appeal is resurrected and that somebody does make an application to the SCCRC. The people best placed to do this would be his family."

The SCCRC and Megrahi's legal team believe they uncovered a series of critical flaws in his conviction, which made it highly likely he would be cleared by an appeal.

Ashton's biography quotes Megrahi stating he was "framed" for the attack. While he refused to blame Dumfries and Galloway police, he accused the Crown Office of "a blatant breach" of their obligations to disclose all the evidence in the case. "If I was a terrorist, then I was an exceptionally stupid one," Megrahi said.

The grounds of appeal included compelling evidence that the chief prosecution witness, Tony Gauci, had wrongly identified Megrahi and linked him to the bomb which brought down the plane; new evidence that Gauci and his brother were paid very large rewards after the conviction; new scientific evidence disputed evidence that the type of timer in the bomb was solely used by the Libyans; and failure to disclose a break-in at Heathrow airport near Flight 103 which could easily have allowed the bomb to be planted.

Ashton, who had worked as Megrahi researcher during the Libyan's appeal, said he was upset by his death. "We have always expected this day to come; we'd been expecting it for three years, but it's still shattering. It's still pretty shocking. I had come to like him. For all he had been through, there was remarkably little rancour. He was, all things considered, very gracious and never lashed out at those closest to him."

Their claims are rejected by the Scottish and UK governments and the Crown Office, the Scottish prosecution service, which has reopened its investigation into the case after the fall of Muammar Gaddafi and has sought cooperation from the new Libyan civilian government.

The UK and US authorities have repeatedly brushed off claims by campaigners that the bomb was planted by Syrian agents and Palestinian terrorists in revenge for the attack on an Iranian passenger airliner by a US warship.

The Scottish first minister Alex Salmond said: "The Lockerbie case remains a live investigation, and Scotland's criminal justice authorities have made clear that they will rigorously pursue any new lines of inquiry."

Jim Swire, whose daughter was a passenger on Pan Am 103 told Sky News: "It's a very sad event. Right up to the end he was determined – for his family's sake, he knew it was too late for him, but for his family's sake – how the verdict against him should be overturned.

"And also he wanted that for the sake of those relatives who had come to the conclusion after studying the evidence that he wasn't guilty, and I think that's going to happen."