Tuesday, 27 June 2017

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

'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.]

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