Tuesday, 10 November 2015

A response to the Dornstein documentary

[What follows is a commentary by Dr Kevin Bannon on Ken Dornstein’s documentary as broadcast on BBC Channel 4:]


I am loath to disparage an investigation by anyone who lost immediate family in such an atrocity as the bombing of Pan Am103. However, notwithstanding his otherwise pertinent observations, I think that John Ashton (in his recent blog) has been remarkably genteel in his response to Ken Dorntein’s pseudo-investigative documentary Lockerbie: My Brother’s Bomber. Dornstein’s faith in the conviction of al-Megrahi appears unshakeable as does his implicit belief that the co-accused, Fhimah was freed on a technicality.


To summarise his film, its recurring focus is the video of al-Megrahi’s return to Tripoli airport, over which Dornstein seethes, while he identifies several more potential Lockerbie suspects among the welcoming party. One of these is Abu Agela whose name also turns up in files found in Tripoli and in former East Berlin archives. Agela is also listed travelling twice on the same plane flights as al-Megrahi. These circumstances are backed by hearsay which identifies Agela as an explosives expert and then link him to the 1986 bombing of Berlin’s La Belle nightclub. To this, I can only add that Ken Dornstein is entitled to his suspicions.


I found more interesting what Musbah Eter had to say, because since his conviction 14 years ago for the La Belle bombing, there had been no apparent comment from him or his 3 accomplices about their convictions. Ken Dornstein gives him ample camera time to explain himself and Eter is shown looking around his old office - not at camera, and not exactly confessing, but thinking aloud, apparently regretting but simultaneously justifying his past:


“...here we conducted state terrorism, surveillance of enemies...and from here we launched the bombing of the Berlin nightclub, from the second floor...carrying with it the destruction and murder of the innocent...  What we did was wrong and I admit it. If I could go back in time I wouldn’t have done it. But the pressure from the state...and the direct orders from the security services...were [sic] the reason why so many Libyan youths were caught up in it.”


Years previously Eter had both admitted and denied having a role in the La Belle bombing as well as implicating his co-accused in court - then denying that too. His cynical mea culpa in the film does little justice to a premeditated act of violence which killed three and maimed and injured many more. Eter offers no explanation or proof of his role and in Ken Dornstein’s film he is not questioned at all on any such details. John Ashton’s recent blog notes Eter’s former CIA associations – it certainly puts the La Belle bomber’s meanders into a kind of perspective.


The film shows the investigating prosecutor in the La Belle case, Detlev Mehlis musing how he had difficulty spelling the name ‘Abugela’ (Abu Agela) “...sorry...I have no idea how to spell Abugela...I would probably spell it like ‘jelly’ or something...” Eter had written down the name for him ‘ABUGELA’ and next to it ‘NEGER’ which Mehlis pronounces “neeger” adding “...but here in German it doesn’t have that negative meaning as in the US.” Mehlis might not find this word negative, but he should know that since the seventies this has been regarded as a derogatory word among most educated Germans.


The Le Belle club specialised in soul music and had been particularly popular with Afro-American servicemen, two of whom were killed along with a Turkish woman - improbable targets by Libya seeking revenge on Washington. A bomb had exploded a week earlier outside Berlin’s German-Arab Friendship offices, (the DAFG), injuring several Arabs. Three Middle Eastern men who had been arrested as the initial suspects in the La Belle bombing were subsequently blamed for this attack; it was said that the motive had been antipathy towards the PLO which they apparently believed the DAFG had represented. However Ahmed Hasi (or Hazi) who placed the DAFG bomb, had no history a political zealot but rather a police record for abusing his wife and drug dealing.


In September 1980, Germany’s deadliest bombing attack on civilians since World War II killed 13 people at the ‘Oktoberfest’– a popular family festival held annually. The device had exploded prematurely, killing the bomber, Gundolf Köhler - a member of a Wehrsportgruppe Hoffmann - a banned neo-Nazi party. Had this bomb plant gone according to plan, one wonders who might have been blamed for the attack – targeting ordinary families and Bavarian provincial traditions – obviously not the far-right.


Ken Dornstein chooses to include a short news clip from al-Megrahi’s deathbed, an interview in which al-Megrahi, in his intermediate English, says that his name had been ‘exaggerated’ - Al-Megrahi wouldn’t have been familiar the words ‘slandered’ or ‘besmirched’ but in October 2011, his comment went viral in the West’s media, who made the interpretation that al-Megrahi’s role in the bombing plot had been exaggerated – which would have been tantamount to an admission of guilt. Al-Megrahi’s fervent denials of any involvement in the Lockerbie bombing were numerous and un-ambiguous. This ‘exaggerated’ statement was grossly misleading in its original broadcasts but more so in Dornstein’s reiteration of it - especially as in his film, it is presented as al-Megrahi’s final word.


Dornstein is also shown equipping himself with a hidden micro-video camera, having ingratiated himself with Jim Swire in hope of filming al-Megrahi himself – and he toys with the idea of demanding a confession or denial from al-Megrahi. To see Jim Swire - totally oblivious to Dornstein’s ruse - warmly welcomed by al-Megrahi’s son at the front door, before introducing Dornstein (who had to wait in the hall) is galling and acutely dishonest. Jim Swire’s openness and magnanimity is well-known and I would expect he forgave Dornstein – as a fellow-in-grief - but I’m not ashamed to say I wouldn’t have. A conversation afterwards with Jim Swire shows Ken Dornstein nodding ‘sympathetically’ as he listens to Jim Swire’s poignant lament for al-Megrahi - this makes Ken Dornstein look, frankly, two-faced.


An investigation of any kind requires elements such as definition, corroboration, credible testimonials or some kind of logical chain-of-evidence – a testable hypothesis or one that is falsifiable as the late Karl Popper would have described it.


I have no idea who planted the bomb – my emphasis is on who didn’t - a narrower focus and a simpler research problem with a more finite evidence basis.


What follows is all factual:


A - The prime witness


Al-Megrahi was originally linked to the Lockerbie bombing plot based only on the evidence eyewitness Antony Gauci a shopkeeper in Malta. There were at least 10 separate features or conditions pertaining to his evidence about items he had sold to a customer; their total cost; the date of sale; the weather on that day; the appearance and age of the customer etc. Fundamental aspects of each and every one of these evidence items or their conditions changed between the initial statements and the latter ones - changes 100% favourable to the prosecution case. The original evidence thoroughly discounted al-Megrahi as the customer in every aspect.


Within the same general period that Tony Gauci modified his testimony he had ‘expressed an interest in receiving money’ and the police discussed on more than one occasion - not in his presence - the possibility of substantial or immediate cash payments being made to him as an inducement: Example from a police memo: "if a monetary offer was made to Gauci this may well change his view and allow him to consider a witness protection programme...”


After the conviction of al-Megrahi, it became apparent that Tony Gauci received ‘in excess of $2 million’ as a reward for helping with the Lockerbie investigation.


B - The circuit board fragment


A fragment of charred cloth was found near Lockerbie about three weeks after the bombing. The item later yielded a tiny fragment of circuit board which forensic investigators linked to timing devices sold to the Libyan defence forces. To this day it remains unclear what date the crucial piece of circuit board was discovered and who discovered it.


No evidence of explosive residue examination of this item – supposedly the only piece of the explosive device found – was produced at trial or shown to have taken place.


Soon after it was first logged, the label attached to this evidence describing its contents was falsified so that its original description ‘Cloth’ then read ‘Debris’ (falsified – not merely ‘overwritten’).


An existing metallurgy test on this circuit board fragment, establishing that it was constitutionally different from the batch sold to Libya, was not introduced in court. Several years later another more advanced metallurgy test confirmed this – corroborating the elimination of the Libyan link to the explosive device.


False testimony drew al-Megrahi into the Lockerbie bombing indictment and corrupt procedures pertaining to the circuit board fragment nailed his conviction. The only rational explanation for this is that al-Megrahi was fitted-up in a conspiracy by individuals associated with the Lockerbie investigation and/or the subsequent prosecution and trial. It is perhaps no wonder why the Scottish and UK authorities are reticent to have the matter delved into any further.


Entirely un-mentioned in Ken Dornstein’s film is Moussa Koussa, former Libyan foreign minister, principal security adviser to Gaddafi himself, and subject of one of the greatest intelligence coups anywhere since 1945. Koussa, Gaddafi’s right-hand man, had been simultaneously a direct informant to the CIA and to MI6 since at least the 1990’s and almost certainly since the early 80s. In 1980 he had uttered, direct to a reporter of The Times in London, an open threat both to assist the IRA and to liquidate Libyan dissidents abroad – an incrimination of the Libyan regime from which it never recovered. This helps explain, better than anything else, the perception of Libya’s self-destructive international image during the 1980s.


On the 30 March 2011, at a decisive moment in the Libyan uprising, Koussa flew to the UK to be debriefed by MI6 and others – and was then allowed safe-passage to Saudi Arabia – into media silence and luxurious exclusion. This alone establishes that the contradictions surrounding Libya since 1980 are much more likely to lie with Western intelligence services rather than amidst Tripoli’s rubble.


When Ken Dornstein arrived in Tripoli the first time, the city had been shattered – the result of a Bay of Pigs--Contras-type CIA war led by Washington, dressed up, naturally as a popular revolt. This time the CIA had been ‘successful’ because they were backed by NATO air power and had the benefit of digital-age disinformation and news management – not to mention Moussa Koussa’s assistance at the outset. Even the overall casualty figures of this destruction-of-a-nation have been withheld – possibly not even enumerated at all. In either case this is in blatant contravention of universal law – because people, or military personnel, are supposed to know what they are doing and what they have done. The report of the UN Human Rights Council into the Libyan ‘rebellion’ was told by NATO that ‘aircraft flew a total 17,939 armed sorties with a “zero expectation” of death or injury to civilians’. The UN sampled 20 NATO airstrikes and counted 60 civilian deaths attributable to them – and left it at that; ‘Do the math’:  (17,939  ÷ 20)  x  60 = x


At least we know that there were ‘zero’ NATO casualties – “a new highpoint in technological warfare” as one Guardian letter-writer observed. We also know that - however shattered Tripoli was after the CIA and NATO had finished with it – conditions there subsequently worsened.


Lockerbie: My Brother’s Bomber is the second Libya-themed ‘documentary’ in the BBC’s appropriately named Storyville series. Its predecessor earlier this year Mad Dog: Gaddafi’s secret world featured a host of stomach-churning anecdotes - all uncorroborated. These included Gaddafi storing the bodies of his enemies in a fridge so he could gloat over them – in one instance 20 years later; a six year old girl having her lips cut off and bleeding to death for smiling inappropriately in Gaddafi’s presence; that Gaddafi was a rampant racist, and regarded dark-skinned Africans as an inferior people; a boy of about 14 filmed holding an ostensible human heart in his hands and promising to eat it; Gaddafi’s relentless appetite for seducing or raping school children, implicitly of both sexes. The narrative was artfully backed by a soundtrack like a horror film.


By contrast, a snuff-movie featuring the torture to death of Gaddafi himself is perfectly genuine. The Sun newspaper devoted a whole front-page to the image of his paraded corpse with the headline: “That’s for Lockerbie”.


It is profoundly disturbing that even the once ‘independent’ BBC broadcasts propagandist items such as Storyville as historical documentary. These will help authorise and sustain the successive armed interventions in the Middle East led by the United States under the false guises of ‘humanitarian assistance’ and ‘national security’.


Ken Dornstein’s film is not the core of the problem; it is the enormous international media backing the film has received. I suggest Ken Dornstein read Manufacturing Consent (Herman & Chomsky 1988) – just in case he has any delusions about why his narrative has received such extraordinary publicity.

Abu Talb in witness box at Lockerbie trial

[On this date in 2000 the BBC News website carried a report headlined Palestinian denies Lockerbie bomb link. It reads as follows:]

A convicted Palestinian terrorist has told the Lockerbie trial that he was at home looking after his children on the night of the bombing.

Mohammed Abu Talb is one of the men alleged by the defence to have carried out the bombing of Pan Am flight 103 over the Scottish town in December 1988.

But, giving evidence after a series of adjournments at the trial in the Netherlands, he denied any involvement.

Talb is in prison in Sweden for bomb outrages against Jewish and American targets.

His evidence has been described as a "spoiler" by the prosecution to destroy claims made by the defence teams.

In a special defence, counsel for Abdelbaset Ali Mohmed Al Megrahi, and Al Amin Khalifa Fhimah allege that the Syrian-backed Popular Front for the Liberation of Palestine-General Command (PFLP-GC) and the lesser-known Palestinian Popular Struggle Front (PPSF) were responsible for the bomb attack.

Talb is mentioned in this special defence as having links with both groups.
Prosecutors allege the two Libyans planted a bomb in a suitcase at Malta's Luqa airport and routed it onto a plane bound for Frankfurt which was eventually transferred to the ill-fated flight to New York.

Talb's evidence had first been expected in August, but that was prevented by a series of objections and adjournments.

These followed the handing over of a dossier of new evidence.

Defence lawyers said they needed more time to carry out further inquiries, but Lord Sutherland dismissed their objections to Talb being called while investigations into new evidence were carried out.

During his 80 minutes in the witness box, Talb told the court that on the night of the Pan Am bombing he was at home caring for his two young children.

He said his wife was at a hospital with her sister-in-law who was giving birth.

The defence objected to Talb's testimony, calling him a "spoiler witness".
They said his sole purpose was to blunt the force of the defence's cross-examination, which would have more force once additional information was obtained.

Lawyer William Taylor told the court the defence would be recalling Talb for cross-examination "at such time as we procure the information we need."

Talb, whose testimony is due to resume on Tuesday, also told the court that he had been a member of the PPSF since 1976.

[A report in The Guardian can be read here.]

Monday, 9 November 2015

Germans link Heathrow with Lockerbie bomb

[This is the headline over an article by David Pallister that was published in The Guardian on this date in 1989. It is no longer to be found on the newspaper’s website, but is reproduced on Caustic Logic’s website The Lockerbie Divide:]

West German forensic experts have discovered evidence which suggests that the bomb which brought down Pan Am flight 103 over Lockerbie last December could have been loaded at Heathrow.

The evidence comes from an examination of three other bombs made by the Palestinian group believed to be responsible for the attack. It casts serious doubt on the theory that the bomb was placed on an earlier connecting flight.

All three devices were identically constructed, with electronic timers set to detonate the Semtex explosive within 43 to 46 minutes of being activated by a barometric pressure trigger at about 3,000 feet. [RB: These timings are not wholly accurate.] The West German police believe they were destined for El Al planes or flights to Tel Aviv.

If the Lockerbie bomb was the same, it would have had to have been placed on board the jumbo at Heathrow, rather than at Frankfurt, Malta or Cyprus - the three possibilities so far publicly canvassed.

The bombs have been connected with the terrorist cell run in West Germany by the Popular Front for the Liberation of Palestine-General Command. The first was found in October 1988 in a radio cassette player in a car driven by Hafez Dalkamoni, who has been identified as a senior member of the PFLP-GC. He is awaiting trial in Frankfurt for a bomb attack on a railway in Lower Saxony in August 1987.

The discovery of the cassette bomb led to warnings from the West Germans to airlines and other western governments in November.

In April this year West German police found three more devices in the basement of a house owned by one of Dalkamoni's relatives in the town of Neuss. One exploded at the Wiesbaden headquarters of the BKA, the federal criminal investigation agency, killing a bomb disposal expert.

The three unexploded devices were all made by the same man. The BKA thinks he was the man arrested with Dalkamoni, Marwan Khreesat, who was mysteriously released without charge two weeks later, along with 12 other Palestinians arrested in October. Khreesat, it has been alleged, was probably an agent working for either Jordanian or West German intelligence, or both.

The forensic experts, working for the BKA, believe the devices were designed to withstand examination by El Al's pressure chambers which are used to screen baggage.

Dr Jim Swire, the spokesman for the UK Families-Flight 103 group, believes the findings could point to the Lockerbie bomb, which was also in a cassette player, being loaded at Heathrow.

The plane took off at 6.25pm and disappeared off the radar screens between 53 and 54 minutes later [RB: Actually 38 minutes later, at 7:03]. It takes between seven and 10 minutes to climb to 3,000 feet, which fits in precisely with the timing system on the other bombs.

Sunday, 8 November 2015

Robin Cook on prospects for Lockerbie trial

[What follows is the text of a report published on this date in 1998 in The Sunday Times, as reproduced on Safia Aoude’s The Pan Am 103 Crash Website:]

The foreign secretary, Robin Cook, believes it is increasingly likely that the two Libyans suspected of the 1988 Lockerbie bombing will be turned over to a court in the Hague by Christmas, ending a 10-year wait to bring them to justice.

"I'm encouraged that the Libyans are seriously engaged on our proposal," Cook said in an interview last week. "There has been no grandstanding or wasting of time."

Cook said indications from Libya suggested that Muammar Gadaffi wanted to break the deadlock over the fate of the two men, Abdel Baset Ali al-Megrahi and Al-Amin Khalifa Fhimah. They are accused of placing a suitcase bomb aboard the Pan Am 103 jet that blew up over the Scottish town of Lockerbie on December 21 1988, killing all 259 people aboard and 11 on the ground.

The foreign secretary said he was particularly encouraged by the recent appointment of a senior Libyan team of lawyers, headed by Kamel al-Maghour, a former foreign minister, to represent the pair.

British sources said they had been told by the United Nations that the Libyans were "largely happy" with assurances given by the British government three weeks ago concerning the planned conduct of legal proceedings.

This followed an Anglo-American proposal made in August under which the two would be tried in the Hague under Scottish law before a panel of Scottish judges and not in London or Washington.

Among the assurances, Britain has guaranteed Libya that the offer of a trial in the Netherlands is not merely a ruse to get hold of the men and send them to America or Britain. The families of the accused have been promised access to them and the defence team allowed to call witnesses from Britain.

The government has also tried to assuage Gadaffi's fears that senior Libyan officials called to testify might be arrested. "Anyone who comes and gives evidence ... is immune from arrest for offences in the past," Cook said. He also insisted the West would honour its pledge to end sanctions imposed on Libya immediately the suspects were handed over. [RB: It is important to note that what was being accorded to witnesses was immunity from arrest while at Zeist. Witnesses receive immunity from prosecution only if called by the Crown as accomplices of those on trial to give evidence against them. Ordinary prosecution witnesses receive no immunity from prosecution, but are entitled to refuse to answer questions that might incriminate them.]

First indications of how quickly the men may be handed over could emerge after the Libyan legal team meets Hans Correll, the Swedish diplomat who is the United Nations' top legal officer, in New York tomorrow.

The only remaining key sticking point is the Libyan demand that al-Megrahi and Fhimah should be imprisoned in the Netherlands rather than Britain if convicted. Cook says this remains non-negotiable. "If convicted of offences under Scottish jurisdiction, they will serve time in a Scottish prison," he said. "There are two cells in Barlinnie [prison] prepared." Cook has made bringing the Libyans to justice a priority since taking office in May last year.

On his desk in the Foreign Office is a constant reminder of the tragedy: a glass globe Cook calls the "Lockerbie snow ball", which was sent by the relative of an American victim. When it is turned upside down, snows falls on miniature Lockerbie memorials.

Saturday, 7 November 2015

Objections to neutral venue trial countered in Commons

On this date in 1997, the adjournment debate in the House of Commons was on the topic of Lockerbie and, principally, on arguments that I had supplied to Tam Dalyell MP refuting the various objections that had been raised to a trial of the two Libyan suspects in a neutral country under Scottish law and (modified) Scottish procedure. The Official Report (Hansard) of the fascinating debate, in which only Mr Dalyell and Tony Lloyd (Minister of State at the Foreign Office) participated, can be read here.

Friday, 6 November 2015

Urgent questions posed to SCCRC by John Ashton

[What follows is the text of an email sent this morning to the Scottish Criminal Cases Review Commission by John Ashton. It is reproduced here with Mr Ashton’s approval:]

I am the biographer of Mr Megrahi and from 2006 until his return to Libya in 2009 worked as a researcher with his legal team.

I have a number of urgent questions, which are listed below, about the statement issued by SCCRC yesterday, in particular, the following passages:

The Commission received the current application from Messrs Aamer Anwar & Co., solicitors, in June 2014. At the time it was clear that the application was made on behalf of the “Justice for Megrahi” group, in the form of Dr Jim Swire, the Rev'd John Mosey and a number of other family members of the victims of the bombing. The application also appeared to be supported by the members of the family of the late Mr Megrahi…

...The Commission also had to consider the circumstances surrounding the abandonment of Mr Megrahi’s previous appeal. To enable it to do so it was imperative that the Commission be provided with the defence appeal papers. After a period of 14 months, and despite various requests having been made of the Megrahi family and of the late Mr Megrahi’s previous solicitors, Messrs Taylor and Kelly, these have not been forthcoming...

[Quote by SCCRC Jean Couper:]
...“It is extremely frustrating that the relevant papers, which the Commission believes are currently with the late Mr Megrahi’s solicitors, Messrs Taylor and Kelly, and with the Megrahi family, have not been forthcoming despite repeated requests from the Commission. Therefore, and with some regret, we have decided to end the current review…”

...The Commission has written to the late Mr Megrahi’s solicitors and to his family requesting access to the defence papers in order to allow it to consider the circumstances surrounding the abandonment of Mr Megrahi’s second appeal. No papers were forthcoming despite repeated requests.

Points to note

1. The application, which the SCCRC yesterday rejected, was not made of behalf of the Justice for Megrahi group but on behalf of a number of the UK Lockerbie victims’ relatives and members of Mr Megrahi’s family.

2. The application stated, in schedule 3:

The circumstances in which Abdelbaset al-Megrahi came to abandon his second appeal are set out in Chapter 14 (pages 346 to 365) and Appendix 4 (pages 420 to 425) of John Ashton’s Megrahi: You are my Jury — The Lockerbie Evidence (Birlinn, Edinburgh, 2012, ISBN-13 978 1 78027 015 9) and (much more briefly) on page 119 of John Ashton’s Scotland’s Shame: Why Lockerbie Still Matters (Birlinn, Edinburgh, 2013, ISBN-13 978 1 78027 167 5) to which the Commission is respectfully referred.

Having been diagnosed as suffering from terminal prostate cancer, Abdelbaset al-Megrahi was desperate to achieve his repatriation to Libya so that he could die surrounded by his family. In these circumstances he applied for compassionate release on 24 July 2009. The Libyan Government had already submitted an application for prisoner transfer on 5 May 2009. Abandonment of Megrahi’s appeal was not a requirement for compassionate release, but it was a requirement for prisoner transfer; and the Cabinet Secretary for Justice intimated that, although prisoner transfer had been applied for more than two months before application was made for compassionate release, both applications would be dealt with by him simultaneously (see eg http://lockerbiecase.blogspot.com/2009/07/megrahi-deadline-will-be-missed.html). Accordingly, if both routes to repatriation were to remain open to him, Megrahi had to abandon his appeal.

In a press release issued through his solicitor, Tony Kelly, a short time after his return to Libya, Megrahi stated: “I have returned to Tripoli with my unjust conviction still in place. As a result of the abandonment of my appeal I have been deprived of the opportunity to clear my name through the formal appeal process. I have vowed to continue my attempts to clear my name. I will do everything in my power to persuade the public, and in particular the Scottish public, of my innocence.” (see http://lockerbiecase.blogspot.com/2009/09/press-release-regarding-publication-of.html). Until the end of his life, Abdelbaset al-Megrahi continued to protest his innocence of the crime of which he had been convicted: see eghttp://lockerbiecase.blogspot.com/2011/12/these-are-my-last-words-i-am-innocent.html.

3. The application was accompanied by an affidavit by me, which provided a detailed account of why, according to Mr Megrahi, he abandoned his previous appeal. It named three Libyan witnesses who could verify this account.

4. Mr Megrahi gave me access to all his legal appeal papers, which I still have.

5. In response to the SCCRC’s statement, Taylor & Kelly solicitors yesterday issued the following statement:

It is with some surprise that we learn today that the Commission have come to the view that papers have not been forthcoming from us as Mr Megrahi’s appeal representatives. As soon as a request was made from the commission we asked to be advised of the basis of the request – the power of the commission to ask for access to material. Despite making clear that we were anxious to assist, we have not as yet been told of the Commission’s authority to have access to amongst other things private communications. As solicitors we cannot deliver up papers in our possession simply upon request, even to a body such as the Commission.

No indication was given to us until today that the Commission were interested in the part of our actings relating to Mr Megrahi’s appeal being abandoned. The Commission have very wide powers indeed. They could have made application to the Court for access to materials. In any such application, they would clearly have been required to state the basis of the request, and the basis for any court to order us as solicitors to have to part with confidential papers. We prefaced that in communications with them and asked them to provide authority for any application. We remain in the dark on this important point.

As solicitors we are bound by professional obligations which are the subject of regulation by the Law Society of Scotland. In the event that we have in some way not met our professional obligations the Law Society could have been consulted.

As it was, at the conclusion of our actings in this case we sought and obtained our own legal advice about the custody of the papers.

No further enquiry was made of our solicitors individually or any others who formed part of the legal team. The Commission in its previous consideration of Mr Megrahi’s case interviewed each member of Mr Megrahi’s team about decisions made in the course of the trial. If focus had centred on the abandonment of the appeal then that could have been pursued by seeking to interview those involved in that aspect of the case.

Questions

1. Why did the commission state that the application had been brought on behalf of the Justice for Megrahi group, when it was in fact brought on behalf on some of the Lockerbie victims’ relatives and members of Mr Megrahi’s family?

2. Why did the commission not approach me to request access to the paperwork that I hold?

3. Why did the commission not interview me about the reasons that Mr Megrahi gave for abandoning his appeal?

4. Why did the commission not attempt to speak to the Libyan witnesses named in my affidavit?

5. Why did the commission not advise Taylor & Kelly solicitors of the legal basis of its request for documentation?

6. Why did the commission not seek to interview solicitor Tony Kelly about Mr Megrahi’s abandonment of his appeal?
I look forward to your early response.

“The fact is, they didn’t want to do this”

[Today’s edition of The Times features a report by Mike Wade headlined Lockerbie case dropped after lack of support. It reads as follows:]

Examining the case of the Lockerbie bomber is no longer in the interests of justice, the Scottish Criminal Cases Review Commission has decided.

Abdul Baset Ali al-Megrahi, a Libyan who died three years ago protesting his innocence, remains the only man convicted of the atrocity, which brought down a Pan Am jet in December 1988, killing 270 people.

The commission had been considering a request for a review of his case brought last July by lawyers for al-Megrahi’s family, but said yesterday it had not been able to secure papers from his former defence team, nor important materials from his closest relatives.

Jean Couper, the chairman of the commission, said: “It is extremely frustrating that the relevant papers have not been forthcoming despite repeated requests. Therefore, and with some regret, we have decided to end the current review.”

Mrs Couper added: “It remains open for the matter to be considered again by the commission, but it is unlikely that any future application will be accepted for review unless it is accompanied with the appropriate defence papers.”

Campaigners hoping to clear al-Megrahi of the bombing by a posthumous appeal said that they were disappointed but not surprised by the decision, and were determined to continue their fight.

“This is not over as far as the family is concerned,” said Aamer Anwar, the solicitor for the family. “The door has not been closed by the commission. The case is dependent on if and when we can travel out to Libya. Hopefully, that will be in the near future.”

The commission’s decision turned on the apparent failure of the al-Megrahi family to pursue the case. His supporters say relatives are scared to speak up for him, because he worked for the despised Gaddafi regime, and they still live in fear of reprisals.

John Ashton, who cowrote a book about Lockerbie with al-Megrahi, accused the commission of “exploiting a legal loophole” to drop the case. “The fact is, they didn’t want to do this. It would have been very expensive and controversial,” he added.

At the end of al-Megrahi’s trial in 2001, a number of prominent observers publicly questioned his conviction, including Dr Jim Swire, who lost his daughter Flora in the bombing. Doubts continue to surround the case.

In July 2007, the commission granted al-Megrahi leave to appeal, identifying six grounds for believing that a “miscarriage of justice may have occurred”.

Two years later, he dropped his appeal, claiming in Mr Ashton’s book that he did so in exchange for his early release. He said that Kenny MacAskill, who was the Scottish justice secretary, told a Libyan government official that “it would be easier to grant compassionate release if I dropped my appeal”.

Last month, Scottish and American investigators were invited to travel to Libya by the National Salvation government to question two further suspects, Mohammed Abouajela Masud and Abdullah al-Senussi.

Al-Megrahi’s supporters believe the identification of the men could help to clear his name.

Mr Ashton said: “If these new suspects are brought to trial, hopefully, it will all come back to court. That would require rerunning the case against al-Megrahi. If Libya stabilises and the family is prepared to put their heads above the parapet, that case can and should be heard.”

Lawyers representing Megrahi at earlier appeal criticise SCCRC

[One of the reasons given by the Scottish Criminal Cases Review Commission for refusing the Megrahi application was the failure by his former solicitors, Taylor & Kelly, to supply requested documentation relating the appeal which was abandoned when Megrahi sought repatriation on being diagnosed with terminal cancer. Taylor & Kelly have responded in a press release which reads as follows:]

It is with some surprise that we learn today that the Commission have come to the view that papers have not been forthcoming from us as Mr Megrahi’s appeal representatives. As soon as a request was made from the commission we asked to be advised of the basis of the request – the power of the commission to ask for access to material. Despite making clear that we were anxious to assist, we have not as yet been told of the Commission’s authority to have access to amongst other things private communications. As solicitors we cannot deliver up papers in our possession simply upon request, even to a body such as the Commission.

No indication was given to us until today that the Commission were interested in the part of our actings relating to Mr Megrahi’s appeal being abandoned.

The Commission have very wide powers indeed. They could have made application to the Court for access to materials. In any such application, they would clearly have been required to state the basis of the request, and the basis for any court to order us as solicitors to have to part with confidential papers. We prefaced that in communications with them and asked them to provide authority for any application. We remain in the dark on this important point.

As solicitors we are bound by professional obligations which are the subject of regulation by the Law Society of Scotland. In the event that we have in some way not met our professional obligations the Law Society could have been consulted.

As it was, at the conclusion of our actings in this case we sought and obtained our own legal advice about the custody of the papers.

No further enquiry was made of our solicitors individually or any others who formed part of the legal team. The Commission in its previous consideration of Mr Megrahi’s case interviewed each member of Mr Megrahi’s team about decisions made in the course of the trial. If focus had centred on the abandonment of the appeal then that could have been pursued by seeking to interview those involved in that aspect of the case.

Solicitors when acting in any case are privy to all sorts of private and sensitive information from their clients, other professionals, the court and so on. It would be odd indeed if those confidences were to be easily breached simply upon request.

The basis of our searching for a proper basis of the Commission’s request was not nit picking, but, rather to ensure that our clients remain confident that the privileged communication between solicitor and client will not be easily violated.

It is a pity that the Commission have decided upon this application on such a basis. We are sorry that the Commission has not given further thought to formulating a basis for their request and sharing with us what was being sought.