Tuesday 18 December 2018

What is at stake is the reputation of the Scottish justice system

[Today's edition of The Scotsman carries an article by James Robertson under the headline Lockerbie anniversary: ‘One terrible injustice cannot be cancelled out’. It reads as follows:]

Like many other people, I remember exactly where I was on the night of 21st December 1988. I was a bookseller in what was then the only Edinburgh branch of Waterstones, on George Street, and that evening the shop was crowded with customers choosing Christmas presents. Popular titles included Stephen Hawking’s A Brief History of Time and the paperback of Scott Turow’s Presumed Innocent. The phones were ringing constantly as people called to ask what time we closed or whether we had a copy of this or that book.

At about eight o’clock I answered the telephone and recognised the voice of a friend, another bookseller, on the line. He had just heard a radio report that a plane had crashed onto the town of Lockerbie. It sounded like a major incident and since, mistakenly, he thought I was from that part of the country he wanted to let me know. I thanked him and went back to work.

By the time I got home and switched on the television it was the only news story. Pan Am flight 103, a Boeing 747 passenger jet en route from London to New York, had fallen out of the sky and, as would be quite quickly established, all 259 passengers and crew, and a further eleven people on the ground, had been killed. A few days later, everybody’s worst fears were confirmed: this was not the result of bad weather or mechanical failure, but of a bomb having been placed on the plane.

That night is now half my lifetime away, and belongs to a world in which there was no internet, and in which news in the UK was accessed entirely via newspapers, radio and four TV channels. Through all the subsequent years of political, social and cultural change, the story of the Lockerbie bombing has never faded. In part this is because of the sheer scale of it: an event like no other in recent Scottish history − except perhaps the Piper Alpha disaster of the same year, which claimed the lives of 167 oil platform workers. But Piper Alpha was an accident, whereas the destruction of Pan Am 103 was an act of mass murder. It led to the biggest ever Scottish criminal investigation and, after more than twelve years, to the conviction of one Libyan man, Abdelbaset Ali al-Megrahi.

The response to the bombing brought out some of the very best in human behaviour − kindness, care, courage and dignity. It also left deep emotional wounds that for some will never fully heal. It is completely understandable that many relatives of the victims, people of Lockerbie, police and other emergency workers involved in the traumatic aftermath have long wanted the story to be over, or as ‘over’ as it ever can be. But after the long investigation, then the trial of Megrahi and his co-accused Lamin Khalifah Fhimah at a specially convened Scottish court in the Netherlands, and finally the conviction of Megrahi alone in 2001, too many questions were left unanswered for this to be possible.

Well-founded doubts about aspects of the investigation have existed almost since the night the plane came down. It is, for example, highly questionable whether the bomb was ingested into the air traffic system at Malta, as the prosecution case against Megrahi and Fhimah contended, rather than at Heathrow. There were serious shortcomings in the identification by Tony Gauci, a key witness, of Megrahi as the purchaser of clothes packed into the bomb suitcase. Likewise, there were clear failings in the metallurgical analysis of the timer used to trigger the bomb. The prosecution failed to disclose vital evidence to the defence. And the indictments against Megrahi and Fhimah, without which no case against them could have been brought, were based on information supplied by a witness found to have been completely unreliable and untrustworthy. Nevertheless, the juryless court acquitted Fhimah and, almost entirely on the basis of circumstantial evidence, found Megrahi guilty. The United Nations-nominated observer Professor Hans Köchler immediately condemned aspects of the judgement as ‘arbitrary’, ‘inconsistent’ and ‘irrational’ and said that the trial as a whole was ‘not fair and was not conducted in an objective manner.’

Concerns that the conviction might be a gross miscarriage of justice were reinforced over the years as new information emerged that had not been considered during either the trial or at Megrahi’s first appeal. The report of the Scottish Criminal Cases Review Commission (SCCRC) on his conviction, made public by the Herald newspaper in March 2012, found six grounds which might have warranted referring the case to the Court of Appeal.

But by that time Megrahi was back home in Libya with terminal cancer, having dropped his second appeal at the time of his controversial release from prison, on compassionate grounds, in 2009. Even his death in May 2012 did not draw a line under the whole affair.

The campaign group Justice for Megrahi (JfM), to which I belong, was founded in 2008. Its signatories include some of those who lost loved ones in the disaster, such as Jim Swire and John Mosey, the ‘architect’ of the Kamp Zeist court arrangements Professor Robert Black, and various journalists, writers, lawyers, politicians, former police officers and other citizens who independently reached the conclusion that something had gone very wrong in the Lockerbie investigation and the subsequent prosecution of Mr Megrahi. In September 2012 the committee of JfM drew up six − later increased to nine − allegations of criminality in connection with the Lockerbie investigation and trial, relating to possible malpractice by Crown Office personnel, police and other prosecution witnesses. The allegations were submitted to the then Justice Secretary Kenny MacAskill in strict confidence. They were passed nonetheless to the Crown Office, which at once publicly denounced them as ‘without exception, defamatory and entirely unfounded’ even before the dossier of detailed evidence had been examined by the police.

This intervention, we felt, represented both prejudice and an intolerable conflict of interest since the Crown Office would ultimately decide whether or not the allegations had any validity. Furthermore, JfM’s allegations would be dealt with by Dumfries and Galloway Police, the force which had carried out the original investigation. None of this gave us confidence that these matters would be treated systematically, objectively and fairly. Indeed, one of the most important outcomes of the Lockerbie saga has been to expose serious faults in the mechanism and procedures of Scottish justice.

However, in 2013 Police Scotland came into being, and the treatment of our allegations changed substantially. ‘Operation Sandwood’ was established, which at its conclusion was described by the police as ‘a methodical and rigorous inquiry using our major investigation framework under the direction of an experienced senior investigating officer.’ We have no argument with that description. Regular liaison meetings took place between JfM and Police Scotland, who engaged a QC completely independent of Crown Office to review the findings of Operation Sandwood. These were unprecedented arrangements. The current Chief Constable, Iain Livingstone, had oversight of the entire investigation, which was completed on 21st November this year.

The Sandwood report has now been submitted to Crown Office. The police concluded that there was ‘no evidence of criminality and therefore no basis to submit a standard prosecution report’. Crucially, however, Police Scotland’s statement goes on to say, ‘The material collated during the inquiry and the findings and conclusions reached have relevance to … the potential appeal against conviction lodged on behalf of the late Mr Megrahi.’

JfM does not, of course, have any knowledge of the details of what the Sandwood report contains, but we are confident that the police have indeed been ‘methodical and rigorous’. We know from the amount of time and resources spent on Operation Sandwood that the police did not deem our allegations either vexatious or without substance. And when the report is received, as it must be, by the SCCRC -- the body currently considering whether to recommend that Mr Megrahi’s family be allowed to make a fresh appeal against his conviction -- we firmly believe that its contents will contain enough information to make that recommendation inevitable.

Such a development, long overdue, would enable all material relevant to the case to be reviewed in the Court of Appeal. JfM believes that in the absence of a public inquiry, which the Scottish Government has consistently refused to establish, this is the only way to have all the evidence examined and to bring some kind of finality to this aspect, at least, of the Lockerbie story.

What is at stake is not just whether there was a miscarriage of justice in Megrahi’s conviction but the reputation of the Scottish justice system. None of this will lessen the pain and grief felt by the families of the dead. But the terrible injustice perpetrated on that December night thirty years ago is not cancelled by another injustice: it is compounded.

The full truth about the Lockerbie bombing is not yet known, but gradually we are moving towards it.

We must hope that some of those, now elderly, who have sought that truth for so long, are still here when it is brought into the light.

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