1. 1 August 2011
Dear Alex Salmond,
In its edition of April 9 the highly influential LexisNexis English law journal Criminal Law and Justice Weekly (vol 175, no.15, pp.221-228) carried an article I wrote about the Lockerbie trial entitled “Masking Justice With ‘Mercy’ ”.
Subsequently, in its numbers for July 16 and 23, CL&JW carried a two-parter by me entitled “Exploding Lockerbie” (sub-captioned “David Wolchover goes to the heart of why the trial court got it so wrong in the Lockerbie case”.)
I
don’t know whether these articles have been brought to your attention
but I am taking the liberty of attaching hereto the pdfs.
I
should mention that I have been in practice at the English Bar for
forty years and although now semi-retired I was for a number of years
Head of Chambers at 7 Bell Yard, Temple Bar, London WC2A 2JR. I am the
author of a number of legal text boooks and of numerous articles in a
variety of law journals stretching back some 30 years. Please see my website for details (although the website text is five years old, is in
need of updating and still includes no reference to the most recent text
book of which I was a contributing co-editor, Witness Testimony, Oxford: OUP, 2006).
“Masking
Justice with ‘Mercy’” mainly concentrated on the manifest deficiencies
in the evidence of the Maltese witness Anthony Gauci, a topic I came to
as an offshoot of my long term interest in the topic of witness
interviewing by the police (see website for the titles of relevant
articles).
Research for that article inspired a wider interest in the details of the case as a whole and “Exploding Lockerbie” was the result.
You
will see that most of part 2 consists of an analysis of the evidence of
what happened at Heathrow, focusing in particular on what flowed from
the account by Pan Am baggage handler John Bedford of his encounter
with the mysterious clone of the bomb-loaded Samsonite suitcase.
Obviously
I assume that you are thoroughly familiar with much of the evidence in
question but, at the risk of indulging in self-advertisement, I believe I
am able to claim that my analysis of the Heathrow angle is
unprecedented in its novelty and in the depth and breadth of its
reasoning.
Although
the judges accepted Mr Bedford’s evidence they treated it as irrelevant
because they found that the bag noticed by him before the arrival of
Pan Am feeder flight PA 103A was not in fact the bomb bag. They did so
in spite of the fact that it was no more than about 3 inches from the
position in the container AVE4041 in which the bomb bag was located
when, according to the experts, the bomb exploded. In
determining that the bomb bag came from Luqa via Frankfurt they
evidently lost sight of the fact that their finding implicitly depended
on a series of improbable coincidences which in their totality amounted
to nothing less than manifest absurdity. In the light of that central
element in the whole trial al-Megrahi’s conviction is entirely
unsustainable.
I
understand that you have been invited to institute an inquiry into the
atrocity but that there may be procedural difficulties about this.
Might
I respectfully suggest that your government would attract little
criticism in the long run in releasing a detailed and reasoned
pronouncement disavowing the conviction and repudiating the finding of
the judges. Although I accept that this might involve difficult
political ramifications I would hazard it would face no particular
constitutional obstacles and in any event the circumstances are truly
exceptional.
If,
on the other hand, you are of the opinion that the judgment remains
logically sustainable I would invite you to indicate to me the basis of
your thinking, with hope making no reference to the mere ex officio authority of the trial judges and those presiding over the concluded appeal proceedings.
I am copying this to Kenny MacAskill and Frank Mulholland.
I very much look forward to your personal response.
Yours sincerely,
David Wolchover
2. 30 August 2011
Dear Mr Wolchover
Thank you for your e-mail of 1 August to Alex
Salmond, First Minister.
Regarding the conviction of Abdelbaset Ali
Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December
1988. I have been asked to reply.
An independent judiciary is a cornerstone of
Scottish justice. It would not be appropriate for Government to cast
doubt on the decisions taken by judges who have listened to all the
evidence and reached a decision in a case. Mr Al-Megrahi was tried and
convicted by a Scottish court before three judges and his appeal against
conviction, heard by a panel of five judges, was unsuccessful. A
second appeal, following a referral from the Scottish Criminal Cases
Review Commission, was abandoned by Mr Al-Megrahi.
The Scottish Government has always been as open
and transparent as possible in this matter which is why, following the
announcement last December that the Scottish Criminal Cases Review
Commission has been unable to secure the necessary consents to release
its statement of reasons in the Megrahi case due to the constraints of
the current legislation, we now intend to bring forward legislation to
overcome the problems presented by the current consent provisions.
This will allow the Scottish Criminal Cases Review
Commission to publish a statement of reasons in cases where an appeal
is abandoned, subject of course to legal restrictions applying to the
Commission such as data protection, the convention rights of individuals
and international obligations attaching to information provided by
foreign authorities.
On the broader questions of an inquiry, the
Scottish Government do not doubt the safety of the conviction of Mr
Al-Megrahi. Nevertheless, there remain concerns with regard to some of
the wider issues relating to the Lockerbie atrocity. The questions to
be asked and answered in any such inquiry would be beyond the
jurisdiction of Scots Law and the remit of the Scottish Government, and
such an inquiry would therefore need to be initiated by those with the
required power and authority to deal with an issue, international in its
nature. The Scottish Government would be entirely happy to co-operate
fully with any such properly constituted inquiry.
Thank you for contacting us with your views.
Lockerbie Team
Scottish Government
3. 2 September 2011
Dear Sir or Madam
I find myself obliged to address you as such because,
although your letter was expressed in the first person you omitted to identify
yourself by name or position.
Suffixed to the text of your message was a notice that “[t]he
views or opinions contained within this e-mail may not necessarily reflect
those of the Scottish Government.” I shall take it that on this occasion you
were writing on their behalf.
May I begin by thanking you – whoever you are – for your
response to my e-mail of 1 August to Alex Salmond.
I further express my thanks to you for the time and effort
which you have taken on behalf of the Government of Scotland in formulating their
reply.
You will not be surprised to learn that as a commentator in
depth on the Lockerbie case and a practising criminal advocate of some four
decades standing I was well aware of the various procedural aspects of this
matter to which you advert. However, I was particularly struck
by one stark proposition contained in your letter and I am writing for
clarification.
In your letter you state:
“An independent judiciary is a
cornerstone of Scottish justice. It would not be appropriate for Government to
cast doubt on the decisions taken by judges who have listened to all the
evidence and reached a decision in a case.”
It might have been understandable if the Scottish Government
had confined themselves to this position, albeit it is one which in the very
special case of Lockerbie might be regarded as disappointing, not to say pusillanimous.
However, for the Scottish Government to declare, through
your letter, that they “do not doubt the safety of the conviction of Mr
Al-Megrahi” appears to be a very different proposition from tactfully abiding
by a studied silence on the merits.
At the risk of being accused of pedantry, the self-effacing sentence
“it is not for us to cast doubt” on such and such is qualitatively quite different
from avowing “we do not doubt” that X is the case. On its most natural meaning
the latter implies that the Government have formed a rational view of the case after
due consideration of the relevant facts.
There will certainly have been no lack of opportunity to do
so. The trial transcript, the trial and original appeal court judgements, and
the court papers for the second, abandoned, appeal, are available for all to
read and the Government’s copying arrangements will have facilitated easy
access by cabinet members. It is difficult to believe that on such a vexed issue
as Lockerbie some at least of the Scottish body politic have not made some
effort to get to grips with the case details.
I would venture to claim that my two recent articles in Criminal Law and Justice Weekly
(“Masking Justice with ‘Mercy’” and “Exploding Lockerbie”) which I attached
with my August 1 e-mail, together offer a detailed, forensic, critique of the
judgment warranting close attention. They will have been available to the
Government for perusal for a whole month during the time that your response was
in preparation. I must confess to some surprise therefore that your reply makes
no reference whatsoever to either article. Criminal
Law and Justice Weekly, formally known as Justice of the Peace, is one of England’s most venerable and
distinguished law journals. The articles make serious and compelling points
which surely deserve at the very least an acknowledgment.
For the purposes of this letter I shall assume that the
phrase “do not doubt the safety of the conviction” was chosen with care and expresses
a process of rational determination upon the facts. This provokes a number of
questions, to which I would respectfully invite the Government’s response.
1. Are you able to indicate whether the expression
“Scottish Government do not doubt” means:
(a) that all cabinet members individually
studied the facts of the case, formed a view, and then came together to take a
vote; or
(b) that only certain members of the cabinet,
for example the First Minister, the Minister of Justice and the Lord Advocate
(assuming the latter was for present purposes a member of the cabinet), studied
the case, and then formulated a summary for their colleagues with a
recommendation which was then collectively accepted; or
(c) that senior cabinet members dictated a view
to their junior colleagues who then endorsed that view on command?
2. In either case are you able to indicate
(a) on what occasion the cabinet made their
determination,
(b) how much discussion there was on the
factual issues,
(c) whether any such discussion was minuted,
(d) without indicating the views of individual
ministers, the general nature of the points taken,
(e) whether there was any conscientious dissent
from expressing belief in the safety of the conviction,
(f) whether any dissenting cabinet members have
been directed by the First Minister to avoid airing their views publicly.
3. If the answer to (1)(b) is in the affirmative
the extent to which the First Minister, the Minister of Justice and the Lord
Advocate have personally studied the evidence in the case.
For your information I am attaching the pdf of another
article of mine, published in the current number of CL&JW, entitled “[A Postscript on Lockerbie].” (Regrettably there are two typographical errors
which were introduced at a late stage through an electronic communication
problem.) I would argue that the novel exposé of the narrow but devastating
point focused on in the final section is one which, standing quite alone and
apart from all the other problems with al-Megrahi’s conviction, might be met by
some very serious soul-searching indeed on the part of judges and ministers
alike and might make some men with a conscience very hesitant about declaring
they have no doubts as to the safety of al-Megrahi’s conviction.
Your message to me carried the following pro forma warning:
“This e-mail (and any files or
other attachments transmitted with it) is intended solely for the attention of
the addressee(s). Unauthorised use, disclosure, storage, copying or
distribution of any part of this e-mail is not permitted.”
I
am going to assume that this was a standard automatically generated
appendage which was not intended to require the Government’s consent as a
condition of quoting
your message in any further excursus into journalism on which I might
embark.
Yours faithfully
David Wolchover
