[This is the title of a long
article by Dr J U Cameron published yesterday on
John Cameron's Blog. It reads in part:]
One of the UK’s foremost criminal lawyers, Michael Mansfield has long warned against over-reliance on forensic evidence to secure convictions. He said “Forensic science is not immutable and the biggest mistake that anyone can make is to believe that its practioners are somehow beyond reproach. Some of the worst miscarriages of justice in British legal history have come from cases in which the forensic science was later shown to have been grossly misleading.” There is, in fact, a kind of “canteen culture” in forensic science which encourages officers to see themselves as part of the prosecuting team rather than investigators seeking the truth.
At first this did not seem to matter in the aftermath of the destruction Pan Am Flight 103 over Lockerbie. It was quickly established by air accident investigators that there had been an explosion in the forward cargo hold in the baggage container AVE 4041. Fragments of a Samsonite suitcase which appeared to have contained the bomb were recovered, together with parts of a Toshiba Bombeat radio cassette recorder in which the bomb had been concealed. There were also items of clothing which looked as if they had also been in the case. At this stage the forensic evidence appeared robust and no credible doubt has been raised in the years since the event that this was the method by which the plane was destroyed.
The police discovered that the baggage container AVE 4041 had been loaded with interline baggage at Heathrow. The baggage had been x-rayed by Sulkash Kamboj of Alert Security, an affiliate company of Pan Am. John Bedford, a loader-driver employed by Pan Am told police that he had placed a number of cases in the container before leaving for a tea break. When he returned he found an additional two cases had been added, one of which was a distinctive brown Samsonite case. Bedford said that Kamboj had told him he had added the two cases. When questioned by the police, Kamboj denied he had added the cases or told Bedford he had done so. This matter was only resolved at the trial when under cross examination Kamboj admitted that Bedford was telling the truth.
All the evidence at this stage pointed to the Popular Front for the Liberation of Palestine –General Command (PFLP-GC). Five weeks before Lockerbie, a PFLP-GC cell was apprehended in Germany. Haffez Dalkamoni, right-hand man to the group’s leader Ahmad Jibril, and the bomb-maker, Marwen Khreesat, were arrested while visiting electrical shops in Frankfurt. In the boot of Dalkamoni’s car was a Toshiba cassette recorder with Semtex moulded inside it, a simple time delay switch and a barometric switch. Under German police interrogation, Dalkamoni admitted he had supervised Khreesat when he built bombs into a Toshiba radio cassette player, two radio tuners and a TV monitor. He also admitted that Khreesat had built other bombs including a second Toshiba containing similar pressure switches but he claimed to have no knowledge of its whereabouts.
The involvement of the PFLP-GC was consistent with what was assumed at the time to be the motive for the Pan Am atrocity. In July 1988 Iran Air Flight 655, a passenger jet containing some 300 Iranian pilgrims, had been shot down over the Persian Gulf by the renegade US battlecruiser
Vincennes. Not only did America refuse to apologize, the captain of the ship and his gunnery officer were decorated for their actions. This crass behaviour caused outrage within Iran and throughout the Middle East. Tehran Radio condemned the attack as an act of naked aggression and announced it would be avenged ‘in blood-splattered skies’.
Soon the US Air Force Command was issuing warnings to its civilian contractors: ‘We believe Iran will strike back in a tit for tat fashion with mass casualties.’ Later warnings were more specific: ‘We believe Europe is the likely target for a retaliatory attack due to the large concentration of Americans and the established terrorist infrastructures in place throughout Europe.’
Within weeks the CIA reported that Ahmad Jibril, the leader of the PFLP-GC had met government officials in Iran and offered his services. Interpol circulated warnings about the PFLP-GC bombs to all European airports. Heathrow Airport issued its own warning to security staff, stating that it was ‘imperative that when screening or searching radios, radio cassette players and other electrical equipment, staff remain extra vigilant’. After the arrest of the PFLP-GC cell Heathrow received more information, including photographs of the Toshiba bomb from the German authorities.
In the aftermath of Lockerbie, all the Toshiba cassette bombs seized by the Germans were tested and found to run for 30 minutes after they were set. The advantage of the barometric timer employed is that it is not activated until the plane is airborne so the bomb will not go off on the ground if the flight is delayed. Some seven or eight minutes will elapse as the aircraft gains height and the air pressure drops enough to activate a barometric timer set to go off 30 minutes later, i.e. 37 or 38 minutes after the flight took off. It was precisely 38 minutes after Pan Am Flight 103 took off from Heathrow on 21 December 1988 that it exploded over Lockerbie.
The clothing thought to have been in the suitcase with the bomb contained labels which allowed the items to be traced to a shop in Malta. A member of Dalkamoni’s cell, Abu Talb, who was then awaiting trial for separate offences in Sweden, was known to have visited Malta shortly before the atrocity. When first questioned the owner of the shop, Tony Gauci, described the purchaser of the clothes as a dark-skinned, 50 year old man over six feet in height – which fitted Abu Talb – and identified him from a photograph.
The US Defense Intelligence Agency (DIA) issued a memo on September 24th, 1989 which stated, “The bombing of the Pan Am flight was conceived, authorised and financed by Ali-Akbar Mohtashemi-Pur, Iran’s former interior minister. The execution of the operation was contracted to Ahmad Jibril, Popular Front for the Liberation of Palestine General Command leader, for a sum of $1m. $100,000 of this money was given to Jibril up front in Damascus by the Iranian ambassador to Syria, Muhammad Hussan Akhari for initial expenses. The remainder of the money was to be paid after successful completion of the mission.”
A DIA briefing in December 1989 entitled “Pan Am 103, Deadly Co-operation” confirmed the American belief that Iran was the state sponsor of the bombing. It claimed that the PFLP-GC was “fast becoming an Iranian proxy” and that the destruction of Pan Am flight 103 to avenge the shooting down of the Iran Air 655 airbus was the result of such Iranian and PFLP-GC co-operation. It specifically discounted Libya’s involvement in the bombing on the basis that there was “no current credible intelligence” implicating her. It stated: “Following a brief increase in anti-US terrorist attacks after the US airstrike on Libya in 1986, Gaddafi has made an effort to distance Libya from terrorist attacks.”
Then, in August 1990, Saddam Hussein invaded Kuwait thereby putting at risk the stability of the Saudi and Gulf sheikhdoms on which the West depended to preserve the status quo in the region. A sudden shift of alliances was necessary. If Iraq was to be confronted, then Iran had to be treated with kid gloves and the Syrian regime must be brought on board. At the beginning of 1991 Syrians joined Western troops in the attack on Saddam’s invading army and the increasingly isolated Colonel Gadaffi gradually became the chief suspect on the Lockerbie bombing.
As a result of the change in overall narrative and the fact that there had been absolutely no Libyan activity in London, interest in Heathrow as the scene of the bomb planting suddenly ceased. Now the Maltese connection became crucial. Heretofore it had simply been assumed the clothes were purchased at a Maltese tourist shop in preference to the more regulated shops of Frankfurt or London.
But there was a long standing connection between Malta and Libya which survived all the twists and turns of international diplomacy. In particular, it was one of the key conduits through which essential supplies could be transferred to Tripoli when Gaddafi’s behaviour had provoked yet another set of sanctions being imposed on his country.
The purchaser of the clothes in Tony Gauci’s shop in Malta now magically morphed from a non-Libyan giant in late middle age to a youthful, 5’ 7” tall Libyan in his mid-thirties. His name, it appeared was Abdelbaset al Megrahi, head of security for Libyan Airlines. Educated in the USA and Britain, he was also director of the Centre for Strategic Studies in Tripoli. A cosmopolitan figure with a wide range of international contacts it was rumoured that he was used by Libya to import essentials during periods of sanctions. The claim that he had suddenly changed into a terrorist bomber was met with derision at home and abroad. The idea that he and his colleague Khalifah Fhimah, the station manager for Libyan Arab Airlines at Luqa Airport in Malta, had somehow secreted an unaccompanied suit case onto flight KM180 was thought to be absurd.
The Maltese police also protested that this was a most unlikely scenario. They had questioned the senior airport baggage loader who was adamant that he always double-counted his luggage: once when it was finally gathered and again as it was physically loaded onto the plane. This extremely reliable official was absolutely certain that there were no unaccompanied cases in the luggage that he counted on to the flight. In fact, not only was there no evidence that the bomb had been put on board in Malta, but Air Malta had won a libel action in 1993 establishing that it was not!
The theory that the bomb entered the system in Malta as a piece of unaccompanied baggage and rattled around Europe before finding its way onto Pan Am 103 in London was widely ridiculed. The excellent screening at Frankfurt would have surely picked it up or, if not, it could well have been lost on the twilight zone of European baggage handling. But the greatest problem lay with the barometric trigger which would have caused flight KM180 to explode 38 minutes into the first leg to Frankfurt. This was the moment when the forensic scientists stepped up to the plate.
The two British scientists involved in the Lockerbie case were the Royal Armament Research and Development Establishment’s Alan Feraday and Thomas Hayes. Charred material found some weeks after the bombing in woods near Lockerbie in mysterious circumstances had been sent for analysis to explosives laboratory at Fort Halstead in Kent. According to his later testimony Hayes teased out the cloth of one piece of the material, later identified as the neckband of a grey Slalom-brand shirt. Within it he found fragments of white paper, fragments of black plastic, a fragment of metal and a fragment of wire mesh—all subsequently found to be parts of a Toshiba RT-SF 16 and its manual. Hayes testified that he also found embedded a half-inch fragment of circuit board.
The next reference to this famous circuit board fragment occurred when Alan Feraday sent a Polaroid photograph of it to the police officer leading the investigation, Detective Chief Inspector William Williamson, asking for help in identification. In June 1990, Feraday and DCI Williamson visited FBI headquarters in Washington and together with Thomas Thurman, an FBI explosives expert, finally identified the fragment as being part of a timer circuit board.
Thurman’s involvement in identifying the fragment later proved highly controversial because in spite of his claim to be an “explosives forensic expert” he had no formal scientific qualifications whatsoever. He read politics at university and had somehow drifted into the FBI Labs. Worse was to follow when in 1997 the US Inspector-General Michael Bromwich, issued a report stating that in other trials Thurman had “circumvented procedures and protocols, testified to areas of expertise that he had no qualifications and fabricated evidence”. Numerous defendants had to be released and Thurman was fortunate not to be prosecuted himself. He was fired from the FBI labs and banned from acting as an expert witness in any other court case.
Thurman could not therefore give evidence at the Lockerbie trial and the Crown’s case would be further damaged when the testimony of his UK counterpart, Alan Feraday, was called into question. In three separate cases — where Feraday had been the expert witness — men against whom he gave evidence have had their convictions overturned. Like Thurman, Feraday was not actually a professional scientist and in 2005, after yet another successful appeal, the Chief Lord Justice said that “under no circumstances should Feraday be allowed to present himself as an expert witness in electronics”.
By the time of the trial the career of Thomas Hayes was also over because a British Parliamentary inquiry had found he had conspired to withhold evidence in the notorious trial of the Maguire Seven. Sir John May had said, “The whole scientific basis on which the prosecution was founded was in truth so vitiated that on this basis alone the conviction should be set aside.” Hayes jumped before he was pushed and by the time of the trial was working as a chiropodist.
As the argument for a Maltese connection and Libyan involvement progressed the tiny fragment of circuit board became increasingly important. Thurman now “indentified” it as part of a batch made by the Swiss manufacturer Mebo for the Libyan military. This was not the simple design thought to have been used in the Pan Am 103 bombing but a complex type of long timer. Edwin Bollier later revealed that he declined an offer of $4 million by the FBI to testify that the fragment was indeed part of the Mebo MST-13 timer. Fortunately one of his employees, Ulrich Lumpert, was prevailed upon to do so at the trial though later, in a sworn affidavit, he would admit he had lied. The other co-owner of Mebo, Erwin Meister, confirmed that MST–13 timers had been sold to Libya and helpfully identified Megrahi as a “former business contact”.
All the ducks were finally in a line and the Anglo-American authorities indicted the two Libyan suspects in November 1991. Gaddafi was then ordered to extradite them for trial in either the United Kingdom or the United States. Since no bilateral extradition treaty was in force between any of the three countries, he refused to hand the men over but did offer to detain them for trial in Libya, as long as all the incriminating evidence was provided. The offer was unacceptable to the US and UK, and there was an impasse for the next three years.
In November 1994, President Nelson Mandela offered South Africaas a neutral venue for the trial but this was rejected by John Major. A further three years elapsed until Mandela’s offer was repeated to Major’s successor, Tony Blair, when the president visited London in July 1997 and again at the 1997 Commonwealth Heads of Government Meeting in Edinburgh in October 1997. At the latter meeting, Mandela warned that “no one nation should be complainant, prosecutor and judge” in the Lockerbie case.
A compromise solution was eventually engineered by the legal academic Professor Robert Black of Edinburgh University of a trial in the Netherlands governed by Scots law. Since this was in accordance with the New Labour government’s promotion of an “ethical” foreign policy, it was given political impetus by the then foreign secretary, Robin Cook. A special High Court of Justiciary was set up in a disused United States Air Force base called Camp Zeist in Utrecht.
In recent years no forensic-based case has caused greater concern than the Lockerbie trial and the prosecution has been widely accused of using the tactics of disinformation. The lead prosecutor was the highly controversial Lord Advocate, Colin (later Baron) Boyd who three years before had prosecuted DC McKie in another forensic disaster. The policewoman denied an accusation by Scottish Criminal Record Office (SCRO) fingerprint officers that she left her thumb print at a murder scene in January 1997. She was arrested in March 1998, charged with perjury but at her trial in May 1999 the SCRO fingerprint evidence was rejected out of hand and she was acquitted.
A senior Scottish police officer, James Mackay QPM, was appointed by the Crown Office to investigate the matter and he submitted his report to Boyd in October 2000. It found that the actions of the SCRO personnel amounted to 'collective manipulation and collusion' and four of them were immediately suspended by the SCRO. With the Lockerbie trial in full swing Boyd was obviously reluctant to prosecute the officers involved and to great public indignation he allowed them to be reinstated. It would clearly have damaged his fragile case in the Lockerbie trial to have four of Scotland’s forensic scientists prosecuted for covering up acts of criminality. The finger-print scandal was only resolved in 2006 when the policewoman was awarded £750,000 compensation and Boyd was rightly forced to resign as Lord Advocate.
There were profound inconsistencies in much of the evidence presented to the trial. For instance, the entry of the discovery of the timer fragment was recorded at widely different times by UK and German investigators. The German police files indicate that fragments of the bomb timer were found on the shirt in January 1990. So the shirt collar could hardly have been examined nor the items of evidence extracted on 12 May 1989 as was claimed by Hayes at the trial. German documents also contain photographs showing a piece of the shirt with most of the breast pocket undamaged but the images presented to the trial were different.
It is also disconcerting that an additional page was inserted into the evidence log detailing the discovery of the Slalom shirt with particles of the bomb timer on it. The record of the discovery was inserted into a loose-leaf folder with the five subsequent pages re-numbered by hand – a procedure for which the scientist could offer no explanation at the trial. The prosecution’s evidence looked at times like a co-coordinated effort to mislead the court. Yet the Judges helpfully concluded that the compromised evidence log did not matter because “each item that was examined had the date of examination incorporated into the notes.”
During the trial, MeBo engineer Ulrich Lumpert – whose evidence was crucial in connecting the famous fragment to the Libyan batch – caused consternation by adding that the fragment on display belonged to a timer that had never been connected to a relay, ie had not triggered a bomb. This claim could not be countered by the prosecution because Hayes had inexplicably not thought it necessary to test the tiny timer fragment for explosive residue. However, given their conduct of the trial it came as no surprise that the three Scottish judges were untroubled by what should have been a disaster for the prosecution.
The lead judge was the veteran Lord Sutherland accompanied by an inveterate tribunal chairman, Lord Coulsfield, and the sentencing and parole expert Lord MacLean. They admitted the uncertainties in the testimony and the dangers inherent in “selecting parts of the evidence which seem to fit together and ignoring parts which do not fit”. They also admitted it was possible they were “reading into a mass of conflicting evidence a pattern and conclusion which was not really justified” but ploughed on regardless.
In the end, the judges accepted that the absence of a credible explanation of how the suitcase was placed into the system at Luqa airport was “a major difficulty for the Crown case”. However they still managed to convince themselves that this was indeed what had happened. “When the evidence regarding the clothing, the purchaser and the timer is taken with the evidence that an unaccompanied bag was taken from KM180 to PA103A, the inference that that was the primary suitcase becomes, in our view, irresistible.” This statement was met with derision in Scotland and rightly dismissed as “inference piled upon inference”.
The judges further accepted that the PFLP-GC were also engaged in terrorist activities during the same period but found “no evidence from which we could infer that they were involved in this particular act of terrorism, and the evidence relating to their activities does not create a reasonable doubt in our minds about the Libyan origin of this crime.”
If most observers found this a very odd way of looking at the evidence, the final decisions of the judges provoked utter consternation. It appeared beyond any shadow of a doubt that the two accused were either both guilty or both not guilty but the Law Lords managed to find clear blue water between them. The judges were unanimous in finding the second accused, Lamin Khalifah Fhimah, not guilty of the murder charge. He was freed and he returned to Libya on 1 February 2001.
As for Abdelbaset al-Megrahi the judges said: “There is nothing in the evidence which leaves us with any reasonable doubt as to the guilt of the first accused, and accordingly we find him guilty of the remaining charge in the indictment.” Megrahi was sentenced to life imprisonment, with a recommendation that he should serve at least 20 years before being eligible for parole.
Huge doubts remain about the prosecution’s case and the Scottish Criminal Cases Review Commission (SCCRC) in 2007 found prima facie evidence of a miscarriage of justice. It is clear from their report that the unreliability of the prosecution’s key witness Tony Gauci was one of the main reasons for the referral of Megrahi’s case back to the Appeal Court. Gauci had been interviewed 17 times by Scottish and Maltese police during which he gave a series of inconclusive statements and there was evidence that leading questions had been put to him. Gauci was clearly not the “full shilling” as Lord Fraser, Scotland’s senior law officer during the investigation, had admitted. And yet he was not entirely stupid. The Americans paid him $2 million for his revised identification and he now resides in comfortable obscurity in Malta.
The review commission also discovered that the prosecution failed to disclose a document from a foreign power which confirmed beyond any shadow of a doubt that the bomb timer was supplied to countries other than Libya. This document, passed to the commission by the foreign power in question, contained considerable detail about the method used to conceal the bomb and linked it to the PFLP-GC, the first suspects in the investigation. Moreover, the Iranian defector Abolghasem Mesbahi, who provided intelligence for the Germans, had already told the prosecutors in 1996 that the bombing been ordered by Tehran, not Tripoli.
Scientists generally recommend selecting the competing hypothesis that makes the fewest assumptions. Known as Occam’s razor, we use it to cut out crazy, complicated constructions and to keep theories grounded in the laws of science. The Maltese evidence linking Megrahi to the atrocity is so fragile, so complex and so full of unsupported assumptions it depends almost totally upon the integrity of the forensic scientists. It is therefore unfortunate that it would be difficult to find three more disreputable practioners than Thurman, Hayes and Feraday. It should be a matter of deep concern that Megrahi is the only man convicted on the evidence of these three individuals whose conviction was not reversed on appeal.
There is also no credible evidence that the clothes from Tony Gauci’s shop found among the Lockerbie wreckage were really bought on the day stated in the trial. The sale seemed much more likely to have happened on a day when Abu Talb was on Malta and Megrahi definitely was not. It is also known that when the Swedish police arrested Abu Talb for a different terrorist offence they found some of the same batch of clothing in his flat in Uppsala. No explanation for that was forthcoming at the trial.
Finally, the behaviour of the chief prosecutor Colin Boyd, both in concealing the nefarious activity of his forensic scientists and withholding essential evidence from the defence, is utterly reprehensible. Together with lack of moral fiber shown by Lord Cullen and the Court of Criminal Appeal [at Megrahi's first appeal] it has left a permanent stain on the reputation of the entire Scottish legal system.
