Foreign Secretary's response to Professor Köchler

In July Professor Hans Köchler, appointed by the UN Secretary-General as an observer at the Lockerbie trial, wrote a letter to the UK Foreign Secretary about (a) an error on the Foreign Office's website about the Lockerbie trial and (b) about the Foreign Secretary's assertion of public interest immunity in respect of certain documents, the failure to supply which to the defence formed one of the grounds on which the Scottish Criminal Cases Review Commission held that Megrahi's conviction might have amounted to a miscarriage of justice. The Foreign Secretary has now replied to Professor Köchler, whose press release reads as follows:

'Vienna, 1 September 2008/P/RE/20260c-is

'In a letter dated 27 August 2008, the Foreign & Commonwealth Office of the United Kingdom has informed Dr. Hans Koechler, an international observer of the Lockerbie trial appointed by the United Nations, that an erroneous entry about the Lockerbie verdict on the Office's country profile page on Libya has now been corrected. The Foreign Office's web site had wrongly reported that the verdict on the second Libyan suspect in the Lockerbie case, Al Amin Khalifa Fhimah, was "not proven." The information has now been corrected to "not guilty." This is important because one of the main reasons for Dr. Koechler's criticism of the Lockerbie verdict had been its being inconsistent. (While the rationale of the indictment was based on the two Libyan nationals' having conspired together to get a piece of baggage containing a bomb loaded on a plane in Malta, the verdict had declared the first suspect, Mr. Abdelbasset Ali Mohmed Al Megrahi, "guilty" and the second suspect "not guilty" - both of which determinations require proof "beyond a reasonable doubt.")

'On 21 July 2008 Dr. Hans Koechler had alerted David Miliband about the misleading entry and had also expressed his concerns about the public interest immunity (PII) certificate issued earlier by the Foreign Secretary in connection with certain "sensitive" material that has been withheld from the Defence in the Lockerbie case.

'In the above mentioned letter, the Foreign & Commonwealth Office has reiterated the Foreign Secretary's position that release of the material in question "would do real and lasting damage to the UK's relations with other states and the UK's national security." At the same time, the Foreign Office has acknowledged vis-à-vis Dr. Koechler that: "Ultimately, it will be for the Court to decide whether the material should be disclosed, not the Foreign Secretary." In the letter, the Foreign Office furthermore asserted the Scottish Court's being bound by the European Human Rights Convention: "Under the Human Rights Act 1998 the Court has a duty to act in compliance with Convention rights in terms of the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the right to a fair trial."

'In a statement issued today, Dr. Koechler said that it is now up to the Scottish judges to assert the independence of the Scottish judiciary and ensure that the conditions for a fair trial (second appeal) are scrupulously met (which implies disclosure to the Defence of all evidence that is in the possession of the Prosecution). There is absolutely no doubt that in a country where the rule of law prevails a fair trial is ex definitione in the public interest. Dr. Koechler expressed the hope that the final decision on the disclosure of the "sensitive" material will not be delayed further. The new appeal cannot go ahead without this step.

'Dr. Hans Koechler will visit Scotland next week for discussions on the Lockerbie case.'

[Note by RB: Professor Köchler is mistaken when he says that the trial court's finding of "not guilty" in respect of the co-accused, Lamin Fhimah, required proof beyond a reasonable doubt. For acquittal, whether by a verdict of not guilty or one of not proven, all that is required is that the court is not satisfied that the Crown has proved the accused's guilt beyond reasonable doubt. The court is certainly not required to be satisfied (beyond reasonable doubt or by any other measure) that he is innocent.]

Failure to rectify Lockerbie case undermines independence aspirations

[On this date in 2007 the following article was published in The Sunday Times:]

The United Nations observer at the Lockerbie trial, Hans Köchler, said that Scotland has the reputation of a "banana republic" because of its handling of the case.

The academic, who advises the European Commission on democracy and human rights, said Scotland does not deserve to be granted independence until it addresses the failings within its judicial system.

He was responding to reports that evidence that would have undermined the crown's case against Abdelbaset Ali Mohmed al-Megrahi, the Libyan convicted of the atrocity, was withheld from his defence lawyers. It has been alleged that evidence relating to a timer device was planted by investigators to implicate the Libyan as responsible for the bombing that claimed the lives of 259 people when Pan Am flight 103 was brought down in 1988.

Köchler said he believed the Crown Office regarded Megrahi as a "headache" and wanted him out of Scotland to avoid further embarrassment.

"They would prefer to have him out of the country and have the entire legal case collapse without asking any further questions." he said.

"But I think it won't be so easy because there are still some people in Scotland who are committed to the rule of law and who do not want the country to appear like a banana republic because that is what it is, for me, after I have followed [the case] over so many years.

"If they aspire to independence then they should show they can do things in the right way in the judicial domain, in devolved areas, and if they cannot do things in the right way and if they handle judicial proceedings like intelligence operations then in my view the aspirations towards independence are not very well founded."

Köchler's comments follow speculation that a US intelligence document, which disputes claims that Megrahi used a digital timer bought from a Swiss company and then planted the bomb on a flight from Malta to Germany — was shown to senior crown officials but never disclosed to Megrahi's defence team.

It is understood to be one reason why the Scottish Criminal Cases Review Commission, which spent three years considering the safety of Megrahi's conviction, decided last June to refer the case to Court of Appeal.

"My most serious concern is about the timer, because if something was indeed inserted, that would have devastating consequences for the entire judicial and political system of Scotland and of the United Kingdom " Köchler added.

Sources close to the case have claimed that evidence was fabricated to implicate Mohammed Abu Talb, a Palestinian terrorist, before the focus of the investigation switched to al-Megrahi and Libya in 1989.

Doubts have also been raised over evidence given at the trial by Tony Gauci, the Maltese shopkeeper who claimed he sold Megrahi clothing that was wrapped around the bomb. Last week, well-placed sources claimed that Gauci and his brother Paul were paid about £2.5m by the US intelligence services soon after Megrahi's appeal collapsed in 2002. Details of the alleged payment emerged in 2005 when one of Gauci's relatives sought legal advice in an attempt to claim a share of the money.

Köchler's intervention will be a blow to the Crown Office, which is still reeling from the collapse of the World's End murder trial. In August, the trial judge Lord Clarke threw out the case against Angus Sinclair ruling there was not enough evidence for the jury to reach a verdict.

An unseemly public row ensued between Lord Hamilton, the lord justice general, and Elish Angiolini, the lord advocate, after she insisted there had been a strong enough case to put to the jury.

"The whole Lockerbie affair has not been a good advertisement for Scottish justice but there is now the opportunity to rectify what went wrong," said Professor Robert Black from Edinburgh University, who brokered Megrahi's trial at Zeist in the Netherlands.

"Provided the lessons are learned then the experience could yet prove to be a beneficial one. Köchler cast doubts over the quality of the evidence after the trial. He wasn't taken seriously at the time but all credit to him, they are now coming to the surface," said Black.

Alex Salmond, the first minister, dismissed Köchler's remarks.

"The strength of the legal system is in the processes it adopts to ensure justice is done and seen to be done. The fact that the Lockerbie conviction is going before the Court of Appeal is not a sign of weakness, it's a sign of strength in our legal system.

A spokeswoman from the Crown Office, said: "It would be inappropriate to comment while the case is yet to come before the appeal court."

Public interest immunity claim precludes fair hearing

[What follows is excerpted from an item originally posted on this blog on this date in 2008. It reproduces a report in that day’s edition of The Sunday Times which no longer appears on the newspaper’s website.]

The UN observer at the Lockerbie trial, Hans Köchler, has said that the Libyan convicted of the bombing will not get a fair hearing in Scotland.

Köchler, who advises the European Commission on democracy and human rights, has condemned government interference in the appeal of Abdelbaset Ali Mohmed al-Megrahi and said the hearing should be held in a neutral country.

His intervention follows an attempt by the British government to block the release of secret papers that could help clear the former Libyan intelligence agent convicted of the 1988 bombing, which claimed 270 lives.

Köchler said Megrahi’s case was handled “more like an intelligence operation than a genuine undertaking of criminal justice” and criticised MSPs for failing to hold inquiries into the downing of Pan Am 103 and its judicial aftermath. “It is almost trivial to say that a fair trial requires the availability of evidence to the prosecution and defence. Only in a totalitarian system would the executive power interfere in court proceedings and order the withholding of evidence.”

The Advocate General, on behalf of British ministers, had objected to disclosure of the documents to Megrahi’s legal team, lodging a public interest immunity plea.

Last month senior judges ordered that the papers should be released to the Court of Criminal Appeal in Edinburgh, where a panel of three judges will decide in camera whether they should be disclosed.

The documents, which are believed to hold information about the electronic timer that detonated the bomb, were not disclosed to the defence during al-Megrahi’s trial at Camp Zeist in the Netherlands. Megrahi lost an appeal in 2002, but the Scottish Criminal Cases Review Commission concluded that he might have been the victim of a miscarriage of justice and referred his case back to the court last year. One of the grounds for referral is believed to be the prosecution’s failure to disclose the secret document to Megrahi’s lawyers.

Köchler said the decision to hear the appeal in Scotland breached a concordat between the UK, the US and the Netherlands. “The fact that the new appeal proceedings take place in Scotland is not in conformity with the original intergovernmental agreement on the Lockerbie trial.” The proceedings totally lacked “transparency”, he said.

Last week, Robert Black, the Edinburgh law professor who helped to arrange Megrahi’s original trial in the Netherlands said the intergovernmental agreement no longer applied. It “existed for the original trial and the appeal. This is now the second appeal.” The agreement was spent, he said.

“Scotland made a mess of the trial and the appeal, and to an outside observer, that might lend justification to Köchler’s view. But I believe that this time it will be done properly and Megrahi will be released.”

Last year, Köchler said Scotland had the reputation of a “banana republic” because of its handling of the case.'

"Standards violated in most serious and fundamental way" in Lockerbie case

[On this date in 2002, the International Progress Organization issued a press release in the following terms:]

Lockerbie appeal: miscarriage of justice

Court not in conformity with European human rights standards

Camp Zeist / Vienna, 15 March 2002/P/RE/17525c-is

In interviews for BBC television and radio and for Dutch Television, Professor Hans Köchler, international observer at the Lockerbie Trial, stated yesterday that the decision of the Appeal Court in the case of Abdelbaset Ali Mohamed Al-Megrahi was not justified and did not properly take into account the contradictions and inconsistencies in the original verdict of the trial court. He spoke of a “spectacular miscarriage of justice” that occurred in the highly politicized context of the Lockerbie trial.

In additional remarks made after his return from Camp Zeist, Professor Köchler expressed the view that the handling of the appeal by the five judges demonstrated their bias towards the position of the prosecution as can be clearly seen from the 370 paragraphs of the Opinion of the Appeal Court.

Professor Köchler expressed the view that appeal proceedings are rendered meaningless if an Appeal Court does not seriously deal with new evidence brought before it and does not examine the grounds of appeal in a careful and systematic manner, based on reason and common sense. He furthermore raised serious questions about the performance of Al-Megrahi’s defense.

Professor Köchler stated that reference to the adversarial nature of the Scottish legal system can be no excuse for the total lack of fairness of the proceedings. Whether a legal system is of adversarial or inquisitive nature, whether we deal with a system based on Common Law or on Roman Law, the basic principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms have to be respected in any court proceedings in member states of the Council of Europe having acceded to the Convention.

Article 6(1) of the Convention states that “In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …” From the conduct of the trial and of the appeal it is obvious that these basic European standards, by which Scottish courts are legally bound, have been violated in the most serious and fundamental way in the proceedings of the High Court of Justiciary in the Lockerbie case.

In his capacity as international observer nominated by UN Secretary-General Kofi Annan on the basis of Security Council resolution 1192 (1998), adopted under Chapter VII of the Charter, Professor Köchler had made a comprehensive report after the announcement of the original verdict of the Trial Court on 3 February 2001. He announced today that he will present a comprehensive report on and evaluation of the appeal proceedings and that he will submit his observations to the President of the United Nations Security Council and to UN member states.

The International Progress Organization will make the report available to the international public at the proper time. [RB: Professor Köchler’s report on the appeal proceedings can be read here.]

Where are Scotland's investigative journalists?

[What follows is excerpted from an article headlined Scottish newspapers accused of shirking investigative duties that was published in the Sunday Herald on this date in 2008:]

When readers are asked what they want more of in newspapers the answer is often great, jaw-dropping scoops. Yet investigative reporting - the discipline behind many such stories - is increasingly seen by many newspaper executives as too expensive to bother with.

This is certainly the view of Professor Hans Köchler, the former UN monitor of the Lockerbie trial, who has attacked the Scottish media for its coverage of Abdelbaset Ali Mohmed al-Megrahi's continuing appeals against his conviction.

Köchler believes Scottish journalists are becoming unwilling to question the establishment version of events and work under editors and executives who refuse to finance proper reporting. He says he has a list of publications and journalists he believes have failed to do their jobs properly, which he may seek to publish at a later date.

Says Köchler: "As far as Lockerbie is concerned I can't understand why more isn't being done by the European country that was most concerned with it. There is a lot at stake: the rule of law, security, the role of international terrorism. Why isn't somebody trying to find out why the authorities are now trying to withhold evidence and delaying everything?"

In an earlier letter to veteran campaigner Robbie the Pict (...), in which Köchler raised the issue of a potential media blackout, he simply wrote: "Where are Scotland's investigative journalists?"

Köchler claims that editors reduced coverage under establishment pressure. Some journalists closely related to the story argue that the real reason why Lockerbie is off the agenda is because people are tired of it, but Köchler claims it is a symptom of a wider problem that cuts across the profession. (...)

In Scotland there are no dedicated investigative teams nowadays, although most papers, especially the Sundays, will allow reporters to go off-diary if they can convince their editors they are onto something interesting. This has resulted in some notable stories including, according to O'Neill, the "forensic" work done by Sunday Herald Scottish political editor Paul Hutcheon when he broke the undeclared donations story that eventually led to Wendy Alexander's resignation. (...)

BBC lifer Marcus Ryder was appointed head of BBC Scotland's investigative unit in September last year. He has a 17-strong investigative team to work with at Pacific Quay, producing radio and television, including an increasing number of episodes of Panorama.

Ryder is adamant that investigative work is crucial to all journalism, across all Scottish media types. He says the key to success is the people: "It's all to do with talent. If you invest in journalists then you get good stories."

But Harry Reid, the former Herald editor and author of Deadline: A History Of The Scottish Press, warns against too much hype. He says the history of investigative journalism is filled with teams who failed to come up with enough scoops to justify their existence and succeeded only in annoying colleagues by being a "newspaper within a newspaper".

"When I was at the Sunday Standard the defunct liberal broadsheet we had an investigative team made up of Roddy Forsyth, George Hulme and David Scott. All great journalists but, for some reason or another, they did not produce one outstanding story," he says.

While this may be fair comment, few would argue that Scottish journalism is ill-equipped to dig out the juiciest stories in the country.

Politics and justice: the Lockerbie trial

[This is the title of a radio programme broadcast on this date in 2007 by Australia’s ABC Radio National. Dr Jim Swire, Professor Hans Köchler and I participated. What follows is a transcript of the programme:]

Keri Phillips: This is ABC Radio National. Keri Phillips here with Rear Vision.

Newsreader: In what could be one of the world's worst air disasters, a Pan Am jumbo jet has crashed into a small village in Southern Scotland.

Reporter: It hit a petrol station in the centre of the town of Lockerbie. Police say there are many casualties.

Man: We initially heard a rumbling over the hotel. We thought the roof was falling in, and then we heard a tremendous shudder on the ground, as though it was an earthquake.

Keri Phillips: Two hundred and seventy people died when Pan Am flight 103 blew up over Lockerbie, a few nights before Christmas in 1988. Although sabotage was not immediately assumed, once the cause was identified as a bomb planted inside a cassette player, suspicions fell initially on a Syrian-backed group, the Popular Front for the Liberation of Palestine, General Command - the PFLP-GC, possibly acting for Iran, which had threatened revenge for the mistaken American downing of an Iran Air passenger plane a few months earlier. But by the time anyone was charged over Lockerbie, it was two Libyan men who were indicted in 1991. Negotiations between Libya and the US and the UK over how the trial would proceed took years, but finally in 2001, one of the men, Abdel Basset al-Megrahi, was found guilty of placing the suitcase containing the bomb on the plane and he is now serving a life sentence in a prison near Glasgow. Recently however, after mounting disquiet over the original finding, the Scottish Criminal Cases Review Commission has decided to refer Megrahi's case to the High Court, a step it takes in cases where it believes there may have been a miscarriage of justice.

Today on Rear Vision, we'll look at what happened at the original trial and hear from three men who are relieved that Megrahi will finally have a chance for a proper appeal against his conviction.

Robert Black, QC, is the former Professor Emeritus of Scots Law at the University of Edinburgh. It was he who proposed that a non-jury trial under Scottish law be held at a neutral venue in the Netherlands.

Robert Black: Normally, trial for a major crime in Scotland like murder, would be before a single judge, sitting with a jury of 15 people. Now the Libyan defence team were not convinced that their clients could get a fair trial before an ordinary Scottish jury of 15 people. There had been so much advance publicity about the Lockerbie affair and much of that advance publicity simply assumed as true the government contentions about who was responsible for the atrocity, namely these two Libyan men, and it was in that context that I came up with the idea of having a trial under Scottish procedure, but without a jury. And also because they were worried about the physical safety of their citizens if they were tried in Scotland, I also suggested that perhaps the trial should be held in a neutral country, like the Netherlands. And so that was the basis upon which I put forward the original proposal, and the Libyan government and the Libyan defence team accepted that proposal within hours of my formally submitting it to them in writing.

But then there was a delay of about 4-1/2 years until the government of Britain and indeed the government of the United States consented to it, largely because they didn't want to be seen for public relations purposes, to be making any concessions to Libya. Libya was a rogue State, a pariah State, and the attitude of Britain and America that there had to be an ordinary trial either in Scotland or in the United States, simply meant that there never would be a trial at all. And eventually after a long time, I think Britain and America realised that.

Reporter: In Tripoli there was much ceremony when in front of 40 Libyan and Arab and South African diplomats, the two men were handed over to the UN's Chief Legal officer, Hans Korel. Wearing business suits and flashing victory signs, Megrahi and Fahima looked confident as they boarded the special UN flight to Holland.

Keri Phillips: Attention had switched to Libya after the first Gulf War, when, some suggest, Iran became an important Western ally. For those who'd lost loved ones, the beginning of the trial in 2000 was a relief, although some were mystified that the responsibility had been shifted from Iran to Libya. Jim Swire lost his 24 year old daughter, Flora, on Pan Am 103.

Jim Swire: We had had meetings with politicians in all sorts of different countries in Cairo and in Britain and Libya, including three visits to see Colonel Gaddafi himself, and once the indictments were issued, it was an extraordinary event, because we knew that up until that point the criminal investigation had been presuming that Iran was behind it, because she had the strong motive of having had her airbus shot down two months before by the Americans, and that the Syrian terrorist group had been the executives because they were known to have the technology that fitted perfectly for what had happened. That was the basis behind my thinking at the time. But we had been told also by a chap called Douglas Hogg who was No.2 to the Foreign Secretary, Douglas Hird in Britain at the time, that there was no evidence against any nation other than Libya, and we knew that that statement simply wasn't true, and we couldn't find ourselves believing what we were told. So my position was that I needed the court case to confirm to me that what the politicians were telling me, which was that of course it was a Libyan job from beginning to end, what are you worrying about? I hoped that the court would confirm that. In fact, the court had exactly the opposite effect. I went into the court thinking these just be the guilty guys who blew up my poor daughter, and I came out of thinking Well these clearly were not the guys, so who the heck was it who did do it and why am I being mistakenly led to believe that these two were responsible when clearly they weren't.

Robert Black: Many outside observers, including myself, couldn't actually understand the reason for this shift in attitude, because I have seen the official minutes of the investigation into Lockerbie, and it is perfectly plain from those official minutes that the investigators at that time were convinced that they had the solution to Lockerbie, and it had nothing to do with Libya and it had everything to do with the PFLP-GC, the Palestinian group. But suddenly, and for no good reason that I can see, the focus of attention changed.

Keri Phillips: Robert Black, who'd continued to take a close interest in the case, says that during the trial the weakness of the evidence against Libya was revealed.

Robert Black: The evidence that was led by the prosecution was much as I think followers of the affair had anticipated. So there were no, I think, real surprises in the prosecution case. But what I think did come as a surprise to some people was how weak some of that evidence turned out to be, particularly the evidence linking Mr Megrahi with Malta, and with the purchase of the clothes which surrounded the bomb. Now these clothes were purchased, so the Crown contended, in a particular shop in Malta. And one of the main planks of the prosecution case against Megrahi was to establish that he was the person who had bought those clothes in that shop in Malta. I think it was partly the problem of the witness, the shopkeeper who actually sold the clothes. He never actually came out and positively said 'I identify Abdel Bassett Megrahi as the person who bought the clothes in my shop.' The most that he would say and the most that he ever said in the run-up to the trial, and in the trial itself, was that Megrahi resembled a lot the person who bought the clothes.

But he had also, in the past, given descriptions of the person who came into the shop and bought these clothes. And that description did not in any way tie up with the physical appearance of Megrahi. For example, in his first statement to the police, the shopkeeper said, 'The person who came into my shop and bought the clothes was over 6-feet tall and was more than 50 years of age'. Now Abdel Basset Megrahi at the relevant time was 36 years old, and was 5-feet 8-inches tall. This came out at the trial. The judges accepted that the shopkeeper effectively had identified Megrahi as the person who bought the clothes, which he never did. And as I say, most neutral, unbiased observers thought that that was an absolutely perverse decision by the judges on the evidence which had been led in court. If it had not been that the court wrongly, in my view, accepted that it had been established that Megrahi was the person who bought the clothes in Malta, there would have been no justification whatever for convicting him. There really wasn't any other significant evidence at all against Megrahi.

Keri Phillips: Today's program is revisiting the conviction of Abdel Basset al-Megrahi for the bombing of Pan Am flight 103 over Lockerbie in 1988, after a Scottish Judicial Commission has decided that there may have been a miscarriage of justice.

Reporter: After such an exhaustive trial the verdict in the case against the two Libyan men charged with blowing up Pan Am flight 103, was something of a surprise. Hopes were high but few people really expected a conviction. In the end though, the three Scottish judges agreed that the prosecution had proved beyond reasonable doubt that one of them, Abdel Basset ali-Mohamed al-Megrahi was the man who planted the bomb.

Keri Phillips: Professor Black says that one of the other mysterious aspects of the case is that only one of the Libyans was found guilty.

Robert Black: This is very, very surprising, isn't it, because the basis of the Crown's case against the Libyans was that Megrahi was the brains behind the plot. The bag-carrier if you like was Fahima, the other accused. But the importance of Fahima in the Crown scenario, the Crown explanation of Lockerbie was that Fahima was the one who had the ability to get the case containing the bomb into the airline baggage handling system, because Fahima was the station chief of Libyan Arab Airlines in Malta, and he was the one, according to the Crown, who could arrange for the suitcase containing the bomb, to be transported as unaccompanied baggage from Malta to Frankfurt, then from Frankfurt to Heathrow and at Heathrow then to be laden on to Pan Am 103. So that was Fahima's role. He wasn't the brains, but he was a necessary instrument in getting this bomb into the airline baggage handling system as unaccompanied baggage.

Now when the trial court held that there was not actually sufficient evidence to show that Fahima had done any of these things, that left an enormous gap in the Crown case, because they now could not provide an explanation of how this suitcase containing the bomb actually got into the interline baggage transfer system at all, because if Fahima wasn't responsible for it, there was no other explanation. So many people thought it's absolutely amazing that the person who supposedly was the one who actually sent this piece of baggage on its fatal journey, once he's out of the picture, how on earth are you still able to convict the other man?

Keri Phillips: Professor Hans Köchler is a specialist in political and legal philosophy at the University of Innsbruck. He was appointed by UN Secretary-General Kofi Annan to attend the trial as an observer for the United Nations.

Hans Köchler: In brief, the trial was in both phases, the trial itself, plus the first appeal from 2001 to 2002, both of the proceedings were not fair, there was a lot of political interference, and as I said, at the end of the appeal, I suspected a miscarriage of justice. That means specifically I was of the view that the person who was declared guilty may be the wrong person, that this man who was now sitting in a Scottish jail, may not be guilty as charged.

Keri Phillips: You said that there was political interference; can you spell out for us what kind of political interference there was?

Hans Köchler: To some extent one can spell it out. Of course most of this goes on behind the scenes, but as an observer who is alert to some extent, I noticed and I was the first to make it public, the presence of representatives of foreign governments in the court room interacting during court sessions with the Prosecution team and the Defence team respectively. The one country I refer to is the United States, the other country is Libya. It is totally irregular because that was a Scottish court, and there were two officials of the United States Department of Justice who interacted with the Prosecution team and there was one Libyan lawyer who officially was a kind of adviser of the Defence team, but in fact was a Libyan official. He's deceased by now and he of course interacted with the Defence team. There was absolutely no point if this is a Scottish court, why there should be people representing a foreign governmental interest, first of all sitting next to either Defence or Prosecution in the court room while the court is on session. And secondly, why during the session they should interact with the official actors of the trial. Both of these groups of people should have been placed together with us, the international observers, behind the bulletproof glass wall. That was the place where the observers of the United States Embassy and of the Libyan Embassy were also seated.

Jim Swire: What I do know is that were circumstances surrounding the trial which one can just credibly say may have misled the judges. And those are things like the fact that the body of the evidence was essentially obtained and offered up by intelligence services in the West, particularly of course the CIA and the FBI. And intelligence services are not known as seekers after truth. If they're doing their job properly they will be doing what they believe is in the interests of the country for which they work, and that may or may not coincide with the truth. I think that's fairly self-evident. So that's the first thing. The real powers behind the assembly of evidence were not uninvolved, objective-minded people, they were people who had a job to do, and I think that at Zeist we saw them doing it.

Another thing was that I felt very uncomfortable; there were members of the US State Department in court who appeared to me during the actual hearings to be coaching one or two of the witnesses, by giving the very slightest of nods to indicate that he should answer yes to that question during the proceedings. And to have powerful representatives of the accusing power present in full view of the witnesses and apparently acting in that way, was totally and utterly unacceptable I think. And I think in this context we should remember what the great Nelson Mandela said to us and had published just before President Clinton gave the go-ahead for the trial in the first place, Nelson Mandela went public and told everyone No one country should be complainant, prosecutor, and judge. But if you take the UK and the USA as acting as one entity in this issue, the UK and the USA were the complainants, the prosecutor and really they were the judges.

Robert Black: I think that consciously or subconsciously, these judges appreciated that if neither of the two Libyan accused were convicted in this trial, this would be an enormous embarrassment to the Prosecution system in Scotland. And the person in charge of the Prosecution system in Scotland is an officer called the Lord Advocate. Now the Lord Advocate is roughly like the Attorney-General in English and English-based legal systems, but in Scotland the Lord Advocate actually was a much more important figure in the legal system, even than Attorneys-General are in English and English-based legal systems, because he was actually at the very head of the criminal justice system. Not only was he the Prosecutor, he was also the person who nominated judges for appointment to the bench. Every judge in Scotland at the time of the Lockerbie trial had achieved his or her position on the bench through being nominated for appointment by the Lord Advocate. There are those and some of these people are in high positions in Libya, who think that there was overt political pressure placed upon the judges to reach a conclusion that was satisfactory to the British and American governments over Lockerbie. I myself don't actually believe that the British government or the American government in any way tried to influence the judges to reach a politically acceptable decision. I really do believe that the reason for Lockerbie and what I am convinced was a perverse decision to convict Megrahi is to do with internal Scottish legal politics. It distresses me because I've been a part of the Scottish justice system now for 35 years as an advocate, as a part-time judge, as a teacher of law and procedure, and it actually came as a shock to me that something within the Scottish criminal justice system could go so badly wrong. I mean even the best-regulated system can make mistakes and we accept that, and that's why you've got appeal courts, to put these mistakes right. But Lockerbie was more than that. Lockerbie brought home to me as I don't think any other case could have done, that actually there is something wrong in the system. It's not just a one-off mistake, there was actually something (I hesitate to use the word, but I think it's justified) there was actually something rotten about the system. And as I say, as somebody who's been involved in that system in one capacity or another for 35 years, I found that personally very distressing.

Keri Phillips: Some, like Daniel Cohen, an American who lost his 20-year-old daughter, Theodora, in the explosion, remain convinced that Libya was responsible, but for Jim Swire:

Jim Swire: What I would like to come out of this is first and foremost no more delays; I think Megrahi should be sent home and his verdict should quashed. I as an individual think that he as an individual deserves that, a profuse apology and compensation and so on for what happened to him as a result of what I believe to have been a deeply flawed trial. But the other thing is, that will leave of course the world saying OK, well if those guys didn't do it, then who did? And trying to divine what the vibes are telling me that I pick up, I mean there are some very professional people involved in the run-up to the next appeal who quite rightly won't tell me things that professionally they shouldn't tell me. But I divine that there is now new evidence concerning the Lockerbie case, which will point us strongly in the correct direction, whatever that may be. I think it'll be Iran and Syria, but whatever that direction may turn out to be, I think incidentally it could also be Egypt, but that's another issue. But wherever it does point us, I think it will give us a helping hand towards discovering the truth, and all we've asked for over the past 18 years in this context is truth and justice, and so far I think we've had neither and I think that we will be asking very serious question about why we have been kept at arm's length and denied the truth for 18 years.

Robert Black: I know that people like Dr Jim Swire who have never been convinced of Megrahi's guilt, even after sitting through the whole of the trial and listening to all of the evidence, their view has been All right, we think an innocent man was convicted and we will fight to get him released. But I think their motivation was largely to the effect that until we get this miscarriage of justice rectified, there will always be a blockage in our path towards finding out the truth about Lockerbie, because every time we say to governments Hold an inquiry into what happened at Lockerbie, the government says We don't need to. We've had a trial and a man's been convicted. We know what happened at Lockerbie. Why are you asking for an inquiry? So to people like Jim Swire you've got to get the blockage caused by Megrahi's conviction removed, and then you can go back to government and say OK, now what reason can you come up with for not holding an inquiry into Lockerbie? And so I think that's part of Jim Swire's motivation, and I support him in that, but I honestly don't think that even if we have an inquiry, that will lead with any certainty to a conclusion as to who was responsible. It may point in certain directions but I personally now think too much time has passed and that we will never actually get an answer that beyond reasonable doubt convinces everyone this is what happened at Lockerbie.

Keri Phillips: And it may take a year before Megrahi's case will be heard in a Scottish appeal court.

If you'd like to find out more about this story, do go to the Rear Vision website. I've put a link to Professor Köchler's Lockerbie website there and you can find his reports to the UN, the court judgments and a lot of other articles on the trial.

Technical producer for today's Rear Vision is Jenny Parsonage. I'm Keri Phillips. 'Bye till next time.

The descent

[This is the headline over an article just published on the website of Scottish lawyers’ magazine The Firm by the editor, Steven Raeburn. It reads in part:]

Most coverage of Pan Am 103 deals with the pitiful saga - now in its 24th ignominious year - in increments. The latest Crown Office statement will be reported. The latest US condemnation, repeated. The latest revelation, examined. But that no more gives you an understanding of the issues that require scrutiny than ten minutes of last night’s Eastenders will of the sordid, bloody history of Albert Square. 

Zooming in on the minutiae of the trees obscures the forest we are wandering through, and it must never, ever be forgotten that Pan Am 103 is a story of geopolitics, of US and UK affairs, the implications for the Middle East and oil that resides there. What happens in Scotland is the dance of the puppet, and eyes should be focused on the hands pulling the strings. Anyone who fails to understand this will never grasp the evasive truth of these events. 

UN observer Hans Köchler grasped this essential truth, and criticised the “highly politicised circumstances in which the case was handled" and which he said "drew the attention of the international public to the possible interference of intelligence services from more than one country”. 

He also warned that “the search for truth is abandoned for political expediency and criminal justice…is sacrificed on the altar of political and commercial interests.” 

In short, on a global political level, the Governments involved all have something to hide and have worked strenuously to achieve this. It has become self evident to even the most casual observer that this is the case. (...)

The Government's Pan Am 103 dogma states that the doomed aircraft blew up at high altitude and fell to pieces over Lockerbie. Pretty straightforward stuff. 

Except it isn’t. 

Eyewitness accounts of the Boeing 747‘s final moments suggest the crew were in control of the aircraft at low altitude, a fact that, if established, totally destroys the carefully maintained but bankrupt fiction of the events that support the Crown’s case against Abdelbaset Al Megrahi. 

The issue was probed during the Zeist trial, albeit from a carefully selected group of witnesses for whom this matter was strictly ancillary to the key aspects of their evidence. But testimony nevertheless given by them supports the proposition that the plane may have been intact and under control at low level before being destroyed by the final explosions which broke the aircraft apart. 

For example, during his testimony, witness Roland Stephenson said he saw the Pan Am 103 travelling in a “glide path“, coming in at a “shallow angle". 

“It was showing some form of lights, probably a small flame, no great flame or anything, enough for me to see the dark shape and the passage of the object, which appeared to me to be travelling in what I would call a glide path,” he said. 

“It was coming at a shallow angle. It was travelling from the extreme right of the town to the extreme left of the town. It appeared to be travelling more or less the line of the main road. 

“But it wasn't descending sharply.” 

Cross-examined by counsel if he had any experience of aircraft, Stephenson said he had lived under two airport flight paths, including the famous Kai Tak in Hong Kong where large jets descended amidst the built up central conurbations.

“I used to live in Hounslow West, which is right under the main runway of the approach to London airport. I also lived in Hong Kong on the actual level with the glide path where planes land at Kai-Tak. I was very familiar,” he said. 

And witness Jasmine Bell testified that on the night of the event she saw the plane “just going over my head” at just above roof height, but did not see it hit the ground. 

That again attests to horizontal travel, rather than vertical.

What was the pilot, Captain McQuarrie, doing? There is not enough information to draw a conclusion, but if he had any control at all of his aircraft, enough to coax it into the “glide path” described, it is not unreasonable to hypothesise that he may have been attempting to effect a nighttime landing on the A74, the only possible option to ground the plane in that area of southern Scotland, which would have been lit like a runway beneath him, denoting the only flat ground in the southern uplands. 

That the plane was ultimately destroyed and ended up in pieces around Lockerbie is inarguable, but its journey from cruising comfortably at high altitude down to the ground is not - judging by the available evidence- as clear cut as the dogma would have us believe. It is a journey whose details the Governments of the UK and US are unwilling to revisit. Why, is self evident. It forces a reassessment of the destruction of the plane, something that has been actively obstructed in Scotland where judicial examination is possible. 

The Air Accident Investigation Branch’s report into the fall of Pan Am 103 said that explosives events onboard caused “most of the remaining aircraft to disintegrate while it was descending nearly vertically from 19,000 to 9,000 feet,” after breaking up substantially within seconds of…whatever it was that happened. 

By the time the wreckage fell below 9000 feet it had effectively disintegrated, we are told by the AAIB. Debris in such a state could never be mistaken for an intact aircraft on a horizontal glide path. 

The AAIB description is both completely at odds with the witness statements at Zeist, and some of the related contemporary reporting, as we shall see. (...)

The Scotsman, on 22 December 1988, reported this: 

“Trouble appears to have struck the 747 somewhere over Langholm approximately 13 miles to the east where residents found lumps of aircraft metal and suitcases. 

“The crippled aircraft struggled west at low level, apparently clipping a hill about three miles east of Lockerbie. 

“Mr Jack Glasgow of Mount Florida, Glasgow, said: "We tried to get near the plane but it was completely on fire. There were no bodies about. I don't think there would be any chance of anyone getting out of it. It went up in a fireball." 

“Mr Glasgow said the aircraft hit the road, carried on for about three quarters of a mile and then exploded.” 

Mr Glasgow was not called to give evidence at the Zeist trial, but what he saw speaks more of an intact aircraft covering ground at low level. Not something that disintegrated five miles up in the night sky overhead. 

The New York Times, in its issue datelined 21 December 1988 states the following: 

“The Associated Press quoted authorities as initially saying that the plane may have hit a hillside in the hamlet of Corrie, six miles from Lockerbie, and that debris was strewn across the countryside 

“The spokesman at the rescue and coordination center said that the first impact of the plane was in the southwestern corner of the village, which has a population of about 4,000, and that the aircraft had bounced after hitting the ground, spreading wreckage over six areas over 10 miles” 

Those of us who have been in journalism long enough know the significant value of the first contemporaneous reports of any event, before an established narrative has been set and an accepted shorthand has been arrived at. (...) When a determined political machine has an interest in protecting a false narrative for a generation, as happened with Bloody Sunday, the value of those initial reports - overlooked, dismissed or subsequently discredited as contrary to the preferred narrative - becomes clear after history permits a reassessment. (...)

The AAIB is a branch of the UK Government, and every sinew of that Government has strained to sustain the falsehood that is the case against Abdelbaset Al Megrahi. The fact that its conclusions sit so at odds with these eyewitness accounts is simply typical of the geopolitical duplicity that defines this case, and which is so hard for those concentrating on the puppet rather than the puppeteer to either recognise or comprehend. 

Hans Köchler grasped it, and concluded that government representatives had protected their vested interest by ensuring crucial evidence was withheld from the Zeist court. 

“The presence of de facto governmental representatives of both sides in the courtroom gave the trial a highly political aura that should have been avoided by all means," he reported. 

“It was a consistent pattern during the whole trial that − as an apparent result of political interests and considerations − efforts were undertaken to withhold substantial information from the Court.” 

Similar interventions have of course been well documented, at Lockerbie itself on the evening of 21 December 1988, and from every point onwards, including all the way through Al Megrahi’s application to the SCCRC, his second appeal, transfer to Libya and beyond. It has carried on in recent months, weeks and days as the supposed ongoing investigation does all that it can to deflect or absorb external inquiry whilst producing absolutely nothing. 

What is clear is that the available testimony does not sustain the manufactured case against Megrahi. Hans Köchler thinks that this amounts to criminal conduct. Such a stain of criminal culpability requires purging by examination, resulting in either exoneration or conviction. The Pan Am 103 deceased, and Abdelbaset Al Megrahi, cannot rest peacefully while questions of criminality remain unanswered. Judicial reassessment is required. 


[A postscript containing additional eyewitness accounts has been added to The Firm's article on 2 July.]