Evidence against Megrahi demolished

[What follows is from an item originally published on this blog on this date in 2012:]

Megrahi evidence "fails to stand up to serious scrutiny"

[Here is an excerpt from Dr Morag Kerr’s Scottish Review article An overview of the Lockerbie case in which the evidence against Abdelbaset Megrahi is set out and demolished:]

Evidence against Megrahi fell under a number of headings.

1. A member of the Libyan security services who had turned CIA informer identified him as a senior security operative.

2. Tony Gauci identified him as 'resembling' the man who bought the clothes in his shop.

3. He was shown to have been at Luqa airport at the time KM180 departed, travelling on a false passport.

4. Baggage transfer records at Frankfurt showed evidence of an item of luggage being transferred from KM180 to PA103A, even though no passenger from the Malta flight was booked on the Heathrow flight, and all the passengers collected their luggage at their destinations with nothing going astray.

5. A small piece of printed circuit board found embedded in a scrap of the Maltese clothes was identified as a part of a countdown timer made by a Swiss firm which Megrahi had had business dealings with. This timer was part of a special order of only 20 items supplied exclusively to Libya.

The difficulty with this is firstly that each of these points fails to stand up to serious scrutiny, and secondly that far more robust evidence exists for both a different modus operandi and a different set of perpetrators.

    1. Membership of the Libyan security services

The CIA informant, Majid Giaka, was originally the Crown's star witness. Without his evidence, the indictments against Megrahi and his colleague Lamin Fhimah (who was acquitted) could not have been issued in the first place. However, CIA cables revealed during the trial exposed Giaka as a fantasist who was inventing 'intelligence' for favours and money from the CIA. The judges discounted all his evidence except for his statement that Megrahi was a member of the Libyan security forces. No other evidence for this was produced, and Megrahi has consistently denied the allegation. No evidence has ever emerged linking Megrahi to any other terrorist atrocities or human rights abuses of the Gaddafi regime, or to refute his claim that he was merely an airline employee who was also moonlighting as an entrepreneur businessman.

    2. The identification evidence

Tony Gauci was first interviewed about the clothes sale on 1st September 1989, nine months after the event. He described the purchaser as Libyan, aged about 50, over six feet tall, heavily built and dark-skinned. Megrahi is 5 feet 8 inches tall, light-skinned, of medium build, and was 36 at the time of the purchase. A photofit and an artist’s impression produced at the time suggest the man may have been negro or mixed race. Gauci was unsure of the date, but this was narrowed down to either 23rd November or 7th December 1988 on the basis of televised football games. Gauci stated that the Christmas lights were not yet lit, and it was raining when the customer left the shop.

On 15th February 1991 (well over two years after the purchase) Gauci was shown a police photospread including a picture of Megrahi. He initially rejected all the men as being 'too young', but when urged to reconsider he chose Megrahi's picture as the one that looked most like the customer. However, all the policemen present knew which picture was the suspect's, a recognised confounder in such exercises and something now banned, and Megrahi's picture was appreciably different from the others in both size and quality. As a further confounder the passport photo reproduction used was such a poor likeness of Megrahi as to be essentially unrecognisable. It did, however, look a bit like the photofit Gauci had produced in 1989.

By the time of the live identity parade in April 1999, better likenesses identifying Megrahi as the 'Lockerbie bomber' had appeared in many publications, which Gauci is known to have seen. (So widespread had been the publicity that most people following the case could probably have picked the accused out without ever having met him.) Megrahi was by then 47, close to the age the purchaser was said to be in 1988. The 'foils' in the parade were nearly all much younger (and bore little resemblance to Megrahi), even though by Gauci's original estimate the purchaser would by then have been in his early sixties. Megrahi in the flesh looked nothing like the images Gauci had produced for the police in 1989, or the blurry passport photo he picked out in 1991. Nevertheless, Gauci once again fingered him as 'resembling' the purchaser.

The date of the purchase was important, as Megrahi was in Malta on 7th December 1988 (using his own passport), but not on 23rd November. Meteorological evidence demonstrated that there was light rain in Sliema at the relevant time on 23rd November, but not on 7th December. The Christmas lights were eventually found to have been switched on on 6th December.

In late 1998 a magazine article was published with a recognisable photograph of Megrahi, together with a list of all the discrepancies between Gauci's original description of the purchaser and date, and the case against Megrahi. Gauci had a copy which was only taken from him four days before the identity parade. When he gave evidence, he consistently back-tracked on his original statements regarding height, build, age, Christmas lights and rain, always to favour the prosecution case. Tony Gauci's brother Paul, who was later rewarded for 'maintaining the resolve of his brother', had long expressed interest in a reward for the family's input, and after Megrahi was convicted the brothers were paid an alleged $3 million by the US Department of Justice's 'Rewards for Justice' programme.

    3. Presence at Luqa airport

Megrahi was at Luqa airport on the morning of the disaster, using a passport in the name of 'Abdusamad'. However, all he did was catch his flight for Tripoli, without going airside, and without checking in any hold luggage. The court accepted that he could not have got the bomb suitcase on to KM180 himself, and must have had an accomplice. That accomplice was originally said to have been Lamin Fhimah, but Fhimah could not even be shown to have been at the airport that morning. The 'false' passport was a legal one, issued to Megrahi to allow him to conceal his airline employment while negotiating business deals to circumvent the sanctions then in force against Libya, and which he occasionally used for personal travel. Although Megrahi used it for that trip, he had business meetings in Malta using his own name, and stayed at a hotel where he was well known.

Not only was no other accomplice identified, security at Luqa airport was unusually tight in 1988, and baggage records provided strong evidence that there was no unaccompanied luggage on flight KM180. Despite intensive and intrusive investigation lasting many months, no plausible mechanism whereby the bomb suitcase could have been loaded was ever identified, and no trace of the bomb was found on the island.

    4. Baggage transfer at Frankfurt

The only evidence for an unaccompanied suitcase coming from Malta was a single line of code in a printout taken from the Frankfurt airport automated baggage system, which surfaced in August 1989. However, that system was far from transparent, and a number of guesses and assumptions were necessary to conclude that something might have been transferred from KM180 to PA103A. In the end, two items apparently loaded on to the Heathrow flight could not be identified, one seeming to have come from Malta and one from Warsaw. The coincidence of the Maltese clothes caused the investigators to become convinced the former item was the bomb, and this was never reconsidered despite the failure to find any way the bomb could have been put on board at Luqa. The Warsaw-origin item was never investigated.

    5. The timer fragment

This is the most notorious item in the Lockerbie case. Originally the investigators believed the bomb to have been triggered by an altimeter device, operating on air pressure, and designed not to explode until the device was airborne (...) This introduced problems in respect of a Frankfurt introduction, as such a device should have exploded over France. A hypothesis was developed that the altimeter had malfunctioned on the feeder flight, only to detonate after the second take-off. When the focus of the investigation switched to Malta and a third flight, this introduced a paradox that was not addressed for over a year, until the identification of this fragment as part of a countdown timer resolved the difficulty.

The MST-13 timer was said to be one of a special run of only 20 supplied exclusively to Libya by the Swiss firm MEBO. Megrahi had business dealings with that firm, but not relating to, or at the time of, the purchase of the timers. Nevertheless this was said to be the 'golden thread' linking him to the bomb. This item had extraordinarily irregular provenance within the forensic investigation, with paperwork anomalies leading many commentators to suspect its appearance in the chain of evidence had been back-dated. In addition, the Libyan provenance was less certain than claimed, with Lockerbie occurring over two years after the timers were supplied, and examples having been found in other parts of Africa.

Irrespective of who had bombed the plane, the countdown timer introduced another paradox. Maid of the Seas exploded only 38 minutes after her wheels left the tarmac, and the plane was not late. There was a seven-hour flight ahead of her, with a thousand miles of Atlantic ocean where incriminating clothes and PCB fragments could have been buried forever. An altimeter timer would inevitably have exploded around 40 minutes into the flight, regardless of take-off time. Using a countdown timer set so early in the flight time carried a huge risk that the explosion would have occurred harmlessly on the tarmac if the plane had missed its slot at Heathrow – as could easily have happened on a stormy winter evening.

It was only in February 2012 that metallurgical evidence concealed from the original trial was revealed, which showed that the fragment could not have been one of the 20 items MEBO had supplied to Libya. This discovery calls into question whether the PCB chip was even part of a countdown timer, rather than some other electronic component using the same basic template.

[RB: Since then, Dr Kerr has, of course, established beyond reasonable doubt that the bomb suitcase was ingested at Heathrow, not Luqa in Malta.]  

Looking in the wrong place

[What follows is the text of an article by Dr Morag Kerr that was published on Wings Over Scotland on this date in 2013:]

Scottish Liberal Democrat leader Willie Rennie should be commended for starting 2013 with a legitimate request rather than a party-political attack. The Herald today reports his renewed call for a public inquiry into the events of the Lockerbie disaster.

The call was prompted by the new Libyan government’s pledge to release documents relating to the incident “as soon as time, security and stability permitted”. But what will such documents reveal beyond what we already know?

Tam Dalyell once said that the Lockerbie case is so complicated you’d need to be a Professor of Lockerbie Studies to understand it. In some ways that’s true, because there are interminable complications, wrinkles and what-ifs to consider. But there’s a simple way of looking at it too, and that is this: Abdelbaset al-Megrahi was convicted because the police firmly believed the bomb that destroyed Pan Am 103 began its journey at Malta airport around nine o’clock on the morning of the disaster. Megrahi, who was suggested as a potential suspect by the CIA, was discovered to have been catching a plane from Malta to Tripoli that was open for check-in at precisely that time.

If the bomb really did fly from Malta, then it might be reasonable to regard Megrahi with a suspicious eye. But the evidence for the bomb ever having been within a thousand miles of the island of Malta is beyond tenuous, and Megrahi was never shown to have done anything at the airport that morning apart from catch his flight home. If the bomb was introduced somewhere else, he actually has a rather good alibi.

The biggest mystery of the entire saga is why the police persisted in their absolute conviction that the bomb had travelled on an Air Malta flight to Frankfurt, despite months and indeed years of investigation finding no evidence of anything untoward at the airport that morning, and in fact no way an unaccompanied suitcase could have been smuggled on board that plane. This is even more surprising when you realise that within only weeks of the disaster, the investigation had very strong evidence indicating that the bomb had actually been smuggled into a baggage container at Heathrow airport, an hour before the feeder flight from Frankfurt landed.

In early January 1989 a baggage handler at Heathrow described having seen a suitcase which he said had appeared mysteriously while he was away on a tea break, on the (previously bare) floor of the container in question, in the corner known by the investigators to be where the explosion had happened. He described the suitcase as a brown hardshell Samsonite. By mid-February, forensic examination had identified the suitcase containing the bomb as a brown plastic hardshell, and by March they knew it was a Samsonite.

The absence of any rejoicing at this point is positively spooky. Rather than pursuing this lead vigorously, the police more or less ignored it. Everyone seemed to be waiting for the forensic results to declare that the explosion had been in a suitcase on the second layer of luggage, and sure enough, the boffins concluded that’s probably how it was. There had been nothing on top of the mystery item before the Frankfurt luggage was added, therefore the bomb suitcase must have been one of the ones that came in on the feeder flight. The investigation remained stalled at this stage for months, until in August a tenuous lead was identified at Frankfurt which sent the police chasing off to Malta, and they never looked back.

The question that was never answered was this. Whose was the mystery suitcase loaded into the container while John Bedford was on his tea break, if it wasn’t the bomb?  The police seemed happy to leave that one hanging. That suitcase didn’t matter, because it was in the wrong place. By about two inches. That line of reasoning held up all through the initial stages of the investigation, and the Fatal Accident Inquiry in Dumfries in 1990-91. Bomb on second layer, no Heathrow-origin luggage on second layer, therefore bomb arrived from Frankfurt. This of course presupposed that the Heathrow-origin luggage had not been moved, but the baggage handler who loaded the suitcases from the feeder flight, Amarjit Sidhu, was adamant he hadn’t moved anything, so that was all right.

The problem with this is that it’s impossible. A suitcase under the bomb suitcase would inevitably have been pulverised. All six pieces of luggage identified as being legitimately placed in that container at Heathrow were recovered, and none of them sustained that sort of damage. Not only that, when the explosion ripped apart the bomb suitcase and the luggage in its immediate vicinity, it created a well-stirred mix of fragments which scattered across the countryside. The searchers combed the fields for these fragments, and the forensics team singled them out for special attention.

Numerous pieces of even the most severely damaged items were recovered in this way, and everything in that category (apart from the bomb suitcase itself) was known, legitimate Heathrow and Frankfurt passenger luggage. There was no sign of any innocent (even if unidentified) suitcase in the mix that might have been loaded at Heathrow and ended up below the bomb suitcase, brown Samsonite hardshell or not. So, if Sidhu hadn’t moved Bedford’s mystery suitcase, and the explosion had been in the case on top of Bedford’s case – well, the laws of physics look like they’re in a bit of trouble.

Putting it simply, both planks of the 1989 police reasoning cannot simultaneously be true. If Sidhu didn’t move the Heathrow-origin luggage, as was believed in 1989, then the Bedford suitcase (on the floor of the container) must have been the bomb, because there’s nothing else for it to be. If there is absolutely no wiggle-room at all for the bomb suitcase to have been on the floor of the container, then Sidhu must have moved the Bedford case – which demolishes the argument used in 1989 to exclude that case from being in the second layer, and again leaves the possibility of its being the bomb wide open.

The only brown Samsonite hardshell suitcase seen by any witness, which had appeared mysteriously in almost the exact position of the explosion, and which the police knew about less than three weeks after the disaster, was ruled out on  the basis on an absolute logical impossibility.

Once this paradox is identified, the crucial dilemma is clear. Which is less credible?  Sidhu’s statement that he didn’t move the Heathrow-origin luggage, or the forensic conclusion that the bomb suitcase had been on the second layer?  Because one of these is simply wrong.

Sidhu was absolutely consistent over three separate police statements that he definitely didn’t move that luggage. Then in the witness box in Dumfries, under oath, he emphatically and specifically denied having lifted out one of the original items and replaced it on a different layer. And there’s no reason why he should have done anything like that. The feeder flight was late, leaving him only 15 minutes for a job he normally had half an hour to complete; it was dark, cold, raining and blowing a gale; and the original items were already well positioned. Why on earth would he have started heaving cases he didn’t need to heave?

In contrast, the best estimate for the height of the explosion was ten inches above the floor of the container. The bomb suitcase was nine inches deep, but what’s the margin of error in that estimate anyway?  It’s also far from impossible that the stacked luggage shifted a few inches due to in-flight turbulence or even banking, moving the bottom suitcase into the position indicated. There were other factors of course, including an examination of the bashed-up and fragmented aluminium base of the container somewhat akin to Mystic Meg reading a palm, but it was all subjective opinion. The bomb suitcase certainly must have been either the case on the bottom of the stack or the one on top of it, and on balance the forensics boffins thought it was the upper one of the two, but that’s as far as it goes.

So what was the court’s decision on this point? That’s a tricky one. In actual fact the court at Camp Zeist was never made aware just how crucial an issue this was, and the bench merely accepted, “for the purposes of this argument” that the bomb suitcase had been on the second layer. How that came about, and John Bedford’s extraordinarily suspicious brown Samsonite hardshell came to be wafted airily to “some more remote corner of the container”, is a whole other article in itself.

But now here we are, in 2012. Megrahi’s second appeal (begun in 2009) centred mainly on the undermining of the eye-witness evidence said to have identified him as the man who bought the clothes packed in the suitcase with the bomb. While that argument was likely to have succeeded if he hadn’t dropped the appeal, it didn’t address the question of the route of the bomb suitcase. Did it fly from Malta, or was it introduced directly at Heathrow?

The ongoing Lockerbie investigation, paid for from our taxes, has been convinced that the bomb flew in from Malta since September 1989. It’s still convinced that Megrahi was “the Lockerbie bomber”, even if there is doubt about his having been the purchaser of the clothes. Why not? He was at the airport when the bomb was smuggled on to the Air Malta flight. He must have been involved! The ongoing investigation believes he didn’t act alone, though, and is determined to track down his supposed accomplices.

We’ve been hearing about investigations in Libya almost since the day of Gaddafi’s death. More than one Libyan official, anxious to curry favour with the Western powers, has claimed to have evidence of Gadaffi having ordered Megrahi to carry out the atrocity. All this has come to nothing. Now the investigators have turned their attention to Malta in the quest for the elusive “accomplices”, though what they imagine they’re going to find there after 24 years that the original investigation didn’t find in 1989-91 is difficult to understand.

When they find absolutely nothing on Malta, as they found absolutely nothing in Libya, is it too much to hope that some young, smart, entirely reconstructed detective might sit down and consider: could the reason we haven’t been able to find anything possibly be because we’re looking in the wrong place?

Lockerbie is a stain on the Scottish legal system

[What follows is the text of an article by James Cusick that was published in The Independent on this date in 2013:]

After 25 years of denials and diplomatic games, we're yet to learn the truth about the Lockerbie bombing

It's sometimes said in Scotland that you can't escape from the past and, like sand clinging to wet feet, it's carried around as a burden. Just how uncomfortable the burden can be will be evident in important rooms in Edinburgh, London and Washington during the next week or so as governing politicians, distinguished lawyers, high-ranking police officers, intelligence officials and interconnected diplomats continue nearly a quarter of a century of denial and obfuscation. The conversations may be similar because the inconsistent official explanation of how and why a Boeing 747 was blown out of the sky above the Dumfries town of Lockerbie on 21 December 1988 remains a truth too far.

Some 38 minutes after Pan-Am Flight 103 Maid of the Seas left Heathrow en route to New York, a bomb built into a Toshiba radio-cassette player, placed inside a Samsonite suitcase, went off. The brief horror inside the aircraft's cabin and flight deck is unimaginable. All on board the disintegrating jet were killed – 243 passengers and 16 crew – and 11 people died on the ground in Lockerbie. It remains the deadliest single terror attack on European soil.

In the fantasy world of Hollywood CSI science, Lockerbie would be a closed case. Meticulous factual analysis would be unchallengeable. Justice would be seen to be done. Reputations would be forged by its success. Feature films would celebrate dogged heroes determined to find the truth. The reality? Despite a mountain of evidence and a supposedly ground-breaking Scottish trial on "neutral" territory in the Netherlands before learned judges, Lockerbie remains a byword for state silence on evidential inconsistencies, surrounded by dark, covert diplomatic games.

A Libyan, Abdelbaset al-Megrahi, was convicted of mass murder in 2001 and sentenced to 27 years in jail. In 2009, supposedly on compassionate grounds, he returned home to die of prostate cancer, which he did in 2012. He remains the official answer to the question: who did this? However, the evidence against Megrahi now wouldn't stand up in any court – unless that court were one where verdicts are determined ahead of what's heard, and any duty to disclose evidence which doesn't suit the prosecuting authorities is seen as an unnecessary luxury.

Lockerbie, then, is a stain on the Scottish legal system; dirty judicial laundry that Alex Salmond and his nationalist administration would rather remained bagged up until well after next year's independence vote. This is one reputation which, if tarnished, would have immediate political implications.

In the months after the mid-air explosion, debris was recovered from hundreds of square miles of Scottish and Northumberland countryside. Pieces from an aluminium cargo hold container – marked AVE4041PA – were pieced back together. Official evidence by the Air Accidents Investigation Branch identified this container as the location of the blast.

For the Semtex hidden inside the radio to have had the effect it did, breaking through the fuselage and creating a small hole that led to the "skin" of the aircraft peeling off at 31,000ft, the suitcase must have occupied a precise bottom-row location inside AVE4041, close to the edge of the plane's hull.

Seven aluminium containers had been filled with the luggage of Pan-Am passengers who had checked in at Heathrow's Terminal 3. The eighth container, AVE4041, was for baggage from a transfer flight from Frankfurt. No security screening of the Frankfurt luggage took place. It was assumed that this had been done in Germany. The feeder flight was due at 17.20. Pan-Am 103 was timed to push off at 18.00.

One of the staff in the loading area where AVE4041 was being filled was John Bedford. He told police in a statement given in January 1989 that he noticed a hard-shell Samonsite suitcase had already been loaded into the bottom of the "tin" container before the feeder flight had even landed.

If an inquiry is ever allowed to re-examine the Heathrow luggage procedures, security in the baggage area at Terminal 3 and the timing and chances of a bag from a late-arriving feeder flight being accidentally placed exactly where needed to blow a hole in a 747's fuselage, the currently accepted account will be made to look ridiculous. Adequately Explained by Stupidity, a new book by Dr Morag Kerr, from the Justice for Megrahi (JFM) team, focuses largely on Heathrow.

Bedford's account has altered over time, but what he said first remains crucial. If correct, what happened before Heathrow – in Frankfurt and Malta, where Megrahi was supposed to have placed the unaccompanied suitcase bomb on flight KM108 from Luqa, which later transferred to Pan-Am 103 – is all irrelevant.

Take Malta out of the equation, and Libya's alleged role in the bombing fades dramatically. But how did Libya figure in the first place? If Flight 103 had been delayed, which is common enough at busy Heathrow, the bomb, if on a simple timer set in Malta, could have exploded with the plane yet to take off. A small hole at ground level would have killed no one. But if the device used was barometric, triggered by atmospheric pressure levels, why did it not detonate on the Luqa-Frankfurt-Heathrow flights?

Terrorist groups in the frame in the early weeks and months of Lockerbie had links to the Palestinians, Syrians, Jordanians and Iranians. Libya would have been in the mix. The motives were varied – anything from state-sponsored revenge against the US, to murkier aspects of covert bilateral deals that backfired. The initial suspects were from the Popular Front for the Liberation of Palestine General Command (PLFP-GC), a Syrian-based terror group headed by Ahmed Jibril. A Maltese chapter of the group was on international intelligence radar. Frankfurt, as the location where the bomb was apparently loaded, had not been discounted.

Another early suspect was Mohammed Abu Talb, an Egyptian member of the Palestinian Popular Struggle Front (PPSF). When Talb was arrested in Sweden on suspicion of being involved in the bombing of a train in Denmark, items of clothing found at his house were traced to a Maltese manufacturer.

According to informed media reports in 1989, Talb had links to the PLFP-GC and had been in Malta with a known terrorist bomb expert. This information was regarded as sound enough for Scottish police to plan a trip to Sweden to interview Talb in prison. The case against him never progressed. However, a report by Megrahi's team in 2002 suggested that Talb was still in the frame at precisely the time that attention switched to Megrahi.

In January 1989, a scrap of shirt collar was found in the area of debris where most of AVE4041 was recovered, The singed material held fragments of the Toshiba radio casing, some speaker mesh and a fragment of a printed circuit board. That fingernail-sized bit of board was to gain prominence in the summer of 1990.

The Scottish police failed to source the origin of this evidence, labelled PT/35b. But a joint effort by the CIA and the FBI in June 1990 matched the circuit board to a timer held in a Langley archive that had been part of a coup attempt in Togo, West Africa. At any future inquiry, the FBI should be asked, why they visited the Zurich offices of Mebo, the timer company, a month before the Scottish police were told of the timer's ID.

The link to Libya was now advanced. It was claimed that the PT/35 fragment was part of an MST-13 timer unit – a specific Mebo order from the Libyan armed forces. By January the following year, Megrahi, a Tripoli airport control manager briefly assigned to Libyan intelligence for bureaucratic rather than specialist tradecraft reasons, was on the investigation's radar.

For a journalist who has observed 25 years of the changing importance of key Lockerbie evidence, examined allegations of deliberate non-disclosure, new whodunnit theories and material reinterpreted for the appeals launched by Megrahi's lawyers, there's an overwhelming sense of one thing – a lack of certainty. What is certain is that the Mebo fragment, a principal piece of evidence against Megrahi, holds none of the hallmarks claimed for it by the prosecution at the Camp Zeist trial in the Netherlands. Mebo gave the investigation control samples from the original batch that had been produced in an outsourced deal with a company called Thuring. Expert technical witnesses claimed that there was no material difference between the Thuring sample and the fragment recovered from the debris. That wasn't true.

During preparations for Megrahi's second appeal, tests showed that the PT/35 fragment was manufactured with a pure tin coating, and the Thuring sample was covered with a standard alloy of tin and lead. The pure tin manufacturing method had never been used by Thuring and all the circuit boards supplied to the Libyan armed forces involved the Thuring process. So whatever PT/35b was, it did not match the timers ordered by and supplied to Libya.

The Mebo-Libya link was crucial to Megrahi's conviction. This is still regarded as key evidence. But without the Malta flight connection and without the timer fragment's Libyan origins, the case against him falls apart. If these developments had been openly scrutinised in court at a second Megrahi appeal, the Scottish police and judiciary risked being made to look, at best, like a collection of amateur investigators.

Details of a second appeal in 2007 were examined by the Scottish Criminal Cases Review Commission (SCCRC). The commission's report granted leave for the Megrahi conviction to be challenged. Six grounds were cited as cause for serious concern, including undisclosed payments of around £2m by the US Justice department to Tony and Paul Gauci, the owners of a clothes shop in Sliema, near Malta's airport. Like the Samsonite case's journey from Luqa to Heathrow, and PT/35's link to Libya, the case against Megrahi required someone to link him to the suitcase. Tony Gauci provided the link.

Among the recovered debris from AVE4041 were the remains of a pair of trousers which had been close to the bomb. The label was intact. The manufacturer was traced to Malta and a clothing company called Yorkie, with a unique order supplied to Mary's House, Gauci's shop. Whatever the inconsistencies in Gauci's account, the clothes packed into the suitcase that sat alongside the bomb were bought at Mary's House. But the Crown's certainty that it was Megrahi who bought them is far from clear. Gauci's statements as to the dates when Malta's Christmas lights were on, and whether or not the purchases had been made when it was raining are key factors that placed Megrahi on the island at specific times. Again, this evidence has been shown to be inconsistent.

His identification of Megrahi was crucial to the verdict. However, the SCCRC acknowledged that if the payments to Gauci had been revealed, then this "was capable of affecting the course of the evidence and the eventual outcome of the trial". The review commission also found that three days before Gauci picked out the Libyan in a formal identification parade, he had held a magazine featuring an article on the Lockerbie bombing, complete with a picture of Megrahi as the culprit. In December 1988, Megrahi had indeed been in Malta. But it is hard to avoid the impression that Gauci's account of the man who bought the clothes that ended up inside the Samsonite suitcase was influenced by the prospect of a sizeable US reward.

The negotiations with Colonel Gaddafi that brought Megrahi and his co-accused, Lamin Khalifah Fhimah, to the Netherlands in 1999 involved Libya offering £8m in compensation to the victims' families. In return, the United Nations lifted sanctions that were crippling Libya's economy. Reward, blackmail or diplomatic and tribal trading? Whatever the true background, there is still a whiff of West and Middle East deal-making surrounding Lockerbie.

"If not Megrahi then who?" should be the question troubling Scotland's criminal justice system 25 years on, because those who brought down Pan-Am Flight 103 have still not been brought to justice. This anniversary, supposed to remember the innocent dead, is also marked by an ongoing shame – the pretence that a Scottish court got it right. It didn't. And as Martin Luther King said: "An injustice anywhere is a threat to justice everywhere."

Lockerbie relatives fated never to know truth

[This is the headline over an article by Magnus Linklater that appears in today’s edition of The Times. It reads as follows:]

After the death of Tony Gauci, the chief prosecution witness, those who could shed light on the tragedy are dwindling

One by one, the key players in the Lockerbie drama fade from the scene, taking with them its secrets. Abdelbaset al-Megrahi himself, prime suspect; Lord Fraser of Carmyllie, Lord Advocate, who brought the case against him; and now Tony Gauci, the chief prosecution witness, who died last week. As Kenneth Roy, the editor of the Scottish Review, noted in his obituary: “To say that all three left unanswered questions would be one of the under-statements of our time.”

Gauci, who owned a clothes shop in Malta, where, on some disputed day in 1988, a man came in to buy the items of clothing later found burnt and shredded around the bomb in Lockerbie, did not have a good press. An unsure witness at best, his testimony about when and by whom the clothes were bought, seemed to change each time he was questioned; and he was questioned a lot — 17 times by Scottish and Maltese police, many more by prosecuting counsel, and later by journalists. Was the man who ordered such an odd assortment of clothes — shirts, jackets, trousers, baby clothes, without checking on their sizes — tall and dark-skinned, as Gauci seemed to remember, or medium-built and light-skinned as Megrahi turned out to be? Did he come into the shop two weeks before Christmas, or in late November? Was it raining, or merely dripping? Were the Christmas lights on or not? Which football match was his brother watching on the day? Gauci tried and tried to remember, and each time seemed to retreat further and further from the truth.

All that has led his detractors to mock his evidence, and dismiss him as a witness of no worth. Lord Fraser notoriously once described him as “not quite the full shilling,” though he was more generous later on.

Those who believe Megrahi was innocent, and the prosecution a charade, point to Gauci as its weakest link. As chief witness for the prosecution, they claim that if his evidence falls, then the entire case collapses. One member of the defence team, hearing of his death, said that he went to his grave carrying responsibility for Megrahi’s wrongful conviction.

That is a dishonourable epitaph for a decent man. The more one re-reads Gauci’s evidence, the more one warms to him as a character. A simple man, the only things he really cared about were his clothes business, and his pigeons. When, on several occasions, he was taken to Scotland for his safety by police, he worried more about the pigeons, and who was minding the shop, than whether the scenery was beautiful, or his hotel comfortable. The one thing he was sure about was that the clothes found at the bomb site were bought from his shop, and on that he never wavered. Who could forget a man who bought such a strange assortment of clothes without bothering to check on their sizes?

Much has been made of the alleged rewards offered to him by police or intelligence agencies. No one, however, has been able to prove that money was a motive for Gauci. [RB: A more accurate account of Tony Gauci’s attitude towards “compensation” is to be found here.] His struggles to remember dates, times and descriptions may sometimes be laughable. But they are honest attempts, not those of a bribed man. Here he is, trying to remember whether or not he had had a row with his girlfriend on the day of the purchase: “We had lots of arguments. I am asked whether I had a girlfriend at the time of the purchase of the clothing. I do not recall having a girlfriend in 1988 but I am always with someone. It is possible that I had an argument with my girlfriend that day. My girlfriend would cause arguments by suggesting a wedding day or suggesting that we buy expensive furniture . . . it is possible that in 1988 I had a girlfriend, but I am not sure.” He is like that with days of the week, or the size of the man who bought the clothes. “I did not have a tape measure to measure the man’s height,” he complains.

For all his confused recollections, the trial judges liked him: “The clear impression that we formed was that he was in the first place entirely credible, that is to say doing his best to tell the truth to the best of his recollection, and indeed no suggestion was made to the contrary,” was their verdict. When the Scottish Criminal Cases Review Commission later came up with six reasons for suggesting that there were grounds for an appeal, they did not dismiss Gauci himself, but said that some of his evidence, and the circumstances in which it was given, were withheld from the defence. Whether that would have altered the outcome will never now be known.

In the end, what are every bit as important as Gauci’s evidence, are undeniable facts: Megrahi’s presence in Malta on the day before the bomb was loaded; his departure back to Tripoli the morning after; his use of a false passport supplied by Libyan intelligence — one he never used again; the large sums of money in his bank account; and now, the evidence uncovered by Ken Dornstein. [RB: If, as Dr Morag Kerr has conclusively established, the bomb suitcase was ingested at Heathrow, not Luqa Airport, none of this is of the slightest relevance.]

Mr Dornstein’s brother died at Lockerbie, and, after 15 years of investigations, he discovered that during his trips to Malta in the weeks leading up to the bombing, Megrahi was accompanied by a man called Abu Agila Mas’ud, a convicted terrorist, who today sits in a Libyan jail. Quite what he and Megrahi were doing there, only Mas’ud can reveal, though Abdullah Senussi, the former Libyan intelligence chief who is also languishing in jail, would be able to shed much light on it as well. [RB: Analyses of the revelations in, and omissions from, Ken Dornstein’s film can be found here and here.]

That light, however, is fading. One by one, the witnesses are disappearing. All that remains are the memories of those who lost loved ones at Lockerbie, and who are destined never to know the full truth.

[RB: What follows is extracted from a comment by Morag Kerr on Kenneth Roy’s Scottish Review article:]

It's odd how this type of article keeps resurfacing. Someone has died, who either told everything they possibly knew about it to the authorities years ago and who could not conceivably have remembered anything further, or who knew nothing at all about it in the first place. But now he's dead, oh the secrets he has taken to his grave!

Tony Gauci appears to have served someone connected to the bombing in his shop. His police statements and his evidence at Camp Zeist are in the public record. So too is the diary of Harry Bell, which recounts the (mis)handling of Tony as a witness and the money that was apparently dangled before his eyes. Three separate expert witness reports take this entire sorry episode apart forensically, but even so they only reinforce what common sense tells us - that a shopkeeper cannot possibly be expected to recognise a customer he saw once, for about half an hour, after the extraordinary lengths of time involved in this case.

We don't need Tony to realise that whoever the man was, it was not Abdelbaset al-Megrahi. Not only was the day of the transaction (almost certainly 23rd November) one when there is no evidence at all that Megrahi was on the island, the multiple discrepancies between Tony's initial description of the purchaser and Megrahi's actual appearance are glaring.

All this happened almost 28 years ago. Even if we had someone who was now alleged to have been that purchaser, and Tony Gauci was still alive, there is no chance whatsoever that a positive identification could be made. What else could Tony tell us? How much money he was paid? What he did with it? Could he give us any real insight into his thought processes when he repeatedly said Megrahi resembled the purchaser but declined to say he actually WAS the man? I doubt it.

So what has the case lost with the death of Tony Gauci? I'd say nothing at all.

Legal warrant for Lockerbie trial

[On this date in 1998 the legal instrument that authorised the High Court of Justiciary to sit in the Netherlands to try the Lockerbie case, and prescribed the procedure to be followed by the court, was made by the Privy Council. The High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998, SI 1998 No 2251 can be read here. Article 5 provides:]

… the Lord Justice Clerk shall appoint three Lords Commissioners of Justiciary to constitute a court for the purposes of any trial to be held in the course of proceedings to be conducted by virtue of this Order, and shall nominate one of them to preside.

   (2) The determination of any question of law arising in any such trial shall be according to the votes of the majority of the members of the court, including the presiding judge.

   (3) The court shall conduct any such trial without a jury.

  (4) For the purposes of any such trial, the court shall have all the powers, authorities and jurisdiction which it would have had if it had been sitting with a jury in Scotland, including power to determine any question and to make any finding which would, apart from this article, be required to be determined or made by a jury, and references in any enactment or other rule of law to a jury or the verdict or finding of a jury shall be construed accordingly.

  (5) At the conclusion of any such trial, the court shall retire to consider its verdict, which shall be determined by a majority and delivered in open court by the presiding judge.

   (6) In the event of a verdict of guilty -

(a) the presiding judge shall pass sentence; and

(b) without prejudice to its power apart from this paragraph to give a judgment, the court shall, at the time of conviction or as soon as practicable thereafter, give a judgment in writing stating the reasons for the conviction.

[RB: The Order was made by “The Queen's Most Excellent Majesty in Council … At the Court at Heathrow”. Since, as Dr Morag Kerr has conclusively demonstrated, Heathrow is where the bomb was loaded, this is strikingly appropriate.]

MacAskill is saying that at Camp Zeist, diplomacy and politics trumped justice

[What follows is the complete text of James Robertson’s review of Kenny MacAskill’s The Lockerbie Bombing. The shorter version published in The Herald can be read here.]

In May 2000, two Libyan citizens, Abdelbaset al-Megrahi and Lamin Khalifa Fhimah, went on trial before a specially convened Scottish court at Camp Zeist in the Netherlands. They were accused of acting in concert to place a bomb contained in a suitcase on a plane flying from Malta to Frankfurt; the suitcase was then transferred as unaccompanied luggage to another flight going to London Heathrow, and there transferred again to Pan Am flight 103, the target, which was blown up, en route to New York, over the town of Lockerbie on the evening of 21 December 1988. All 259 passengers and crew, and 11 people on the ground, were killed.

In January 2001, the court acquitted Fhimah, but found Megrahi guilty and sentenced him to life imprisonment. He remains the only person convicted of involvement in the bombing. To many people, the verdict did not make sense then, and subsequent revelations have only reinforced a widespread belief that Megrahi was the victim of a shocking miscarriage of justice.

This book is former Cabinet Secretary for Justice Kenny MacAskill’s account of the atrocity, of the subsequent investigation and trial, and of his own part in what followed. In 2009, it fell to him, in his ministerial role, to decide whether to grant Megrahi, who was by then suffering from terminal prostate cancer, compassionate release from prison. That decision – to allow Megrahi to go home to Libya to die – forms the centrepiece of Mr MacAskill’s narrative, but it is not the most revealing part.

The book suffers from Mr MacAskill’s inflated and syntactically-challenged writing style: ‘The investigation, meanwhile, marched meticulously on. The dynamics of both tension and camaraderie between various agencies continued, though in the main all worked well with each other.’ The narrative is scattered with words like ‘literally’ (bodies were ‘literally destroyed, smashed to smithereens’), and ‘doubtless’ (a prop for assertions unsupported by any evidence). Mr MacAskill deprives many of his sentences of verbs, and fattens others with clichés. Readers who might reasonably expect a full set of references to back up his account of this long, controversial and unfinished story, will be disappointed: there is no index, no bibliography and, of the 93 footnotes, 67 come from just four sources, one of these being the Scottish Government’s own website. A cover quotation from Clive Stafford Smith, the human rights lawyer, credits Mr MacAskill with a ‘forensic attention to detail’. I beg to differ.

None of this would matter if Mr MacAskill were writing about UFOs or his favourite movies. His subject, however, is the biggest criminal case in Scottish legal history – an event he chooses to describe on page 1 as ‘one of the greatest whodunnits of all time’. It matters greatly that a trained lawyer should use imprecise and careless language to discuss complicated questions of evidence. It matters, for example, that, in referring to the timer which the court at Camp Zeist accepted was used to detonate the bomb, Mr MacAskill calls it ‘the MST-13 model, known as an ice-cube timer’. In fact, MST-13 timers and ‘ice-cube’ timers were completely different, and that difference – as the court’s judgement made clear – was crucial to the prosecution’s case. If the bomb was triggered by an ‘ice-cube’ timer – as many critics of the investigation believe it was – then had it been loaded in Malta it would have exploded between there and Frankfurt, rather than 38 minutes after takeoff from Heathrow. Such a basic mistake does not inspire confidence that Mr MacAskill has a full grasp of his subject.

His publishers, Biteback Publishing – owned by Lord ‘Call Me Dave’ Ashcroft and former blogger and Conservative candidate Iain Dale – do not seem unduly bothered by these shortcomings. Could it be that they don’t mind if the book damages the reputations of the author and the SNP administrations in which he served?

The most astonishing passages occur when Mr MacAskill offers his opinion as to who planted the bomb. Syntax purists, look away now: ‘Megrahi had been to Malta the month before, which was probably preparatory for the scheme and involved discussions on the logistics of clothes, the suitcase and the bomb equipment. He may even have brought the timers in with him.’ At this point Mr MacAskill ratchets up his use of the conditional tense – always a handy tool when indulging in pure speculation: ‘He [Megrahi] would meet with others in the [Libyan] embassy…he would not be the bomb maker. That would have been prepared in the Libyan People’s Bureau…’ Again, there is no attempt to substantiate these wild surmises.

Mr MacAskill proceeds to demolish the findings of the Camp Zeist court. Of the items bought in Tony Gauci’s shop in Malta which were packed in the bomb suitcase, he writes: ‘The clothes were acquired in Malta, though not by Megrahi.’ Correctly describing as ‘rather implausible’ the evidence produced by the prosecution that Megrahi was the purchaser, MacAskill continues, ‘But, if Megrahi didn’t buy the clothes, he was certainly involved.’ Really? How?

Megrahi’s role, it seems, was to fly from Tripoli into Luqa Airport in Malta on 20 December 1988 ‘with the suitcase that was to transport the bomb’. ‘The suitcase,’ we are informed, ‘was a Samsonite model, sold heavily in the Middle East market’ – as if this proves anything. These statements not only disregard the fact that Megrahi and his co-accused Fhimah (the station manager for Libyan Arab Airlines at Luqa) arrived in Malta on that date with no check-in luggage, they also rely solely on the testimony of a CIA-paid informer Abdul Majid Giaka, whom the judges dismissed as an utterly unreliable witness, concluding, ‘We cannot accept the evidence of Abdul Majid that he saw the two accused arriving with a suitcase. It follows that there is no evidence that either of them had any luggage, let alone a brown Samsonite suitcase.’

Mr MacAskill wades deeper into the mire. Further undermining the Camp Zeist judgement, he writes that, on the morning of 21 December, Megrahi took the suitcase (now apparently loaded with the bomb) to the airport, ‘but it was Fhimah who would get it airside and beyond security.…Placing a bag behind and into the system was a relatively simple task given the accreditation and access Fhimah had.’ At the trial the Crown argued that just such a sequence of events had occurred. The judges, however, concluded that ‘there is no evidence in our opinion which can be used to justify this proposition and therefore at best it must be in the realm of speculation. Furthermore, there is the formidable objection that there is no evidence at all to suggest that the second accused was even at Luqa airport on 21 December.’ Fhimah was consequently acquitted.

The judges also observed that ‘the absence of any explanation of the method by which the primary suitcase might have been placed on board KM180 [at Luqa] is a major difficulty for the Crown case.’ In just a few bold sentences, Mr MacAskill has completely overcome this difficulty.

Mr MacAskill finds it ‘hard to imagine how there could have been any other verdict in the circumstances.’ This is strange, as neither prosecution, defence teams, the families of the victims nor most independent observers expected one of the accused to walk free and the other to be found guilty. Mr MacAskill continues: ‘In many ways, as with Megrahi and Fhimah, Scots law and its judges were simply actors in the theatre that had been created to circumvent and solve both a diplomatic impasse and political problem. Scots law convened the trial, and yet found itself on trial.’

Read those sentences carefully: a former Justice Secretary is effectively saying that, at Camp Zeist, diplomacy and politics trumped justice. For how many years have critics of the proceedings been saying this, while Mr MacAskill, the Scottish Government and the Crown Office have maintained that justice prevailed?

Mr MacAskill’s solving of the problem of how the bomb was placed on flight KM180 relieves him of the need to address with any seriousness the accumulated mass of other evidence pointing in other directions. He pays no attention to the post-trial discrediting of the infamous timer circuit-board fragment linking Libya to the bomb, nor to Morag Kerr’s  convincing explanation, in her 2013 book Adequately Explained by Stupidity?, of the much more likely scenario that the bomb was loaded directly onto Pan Am flight 103 at Heathrow. He skims lightly over the Scottish Criminal Cases Review Commission’s 2007 report which indicated at least six grounds on which Megrahi’s conviction might be unsafe. Of John Ashton’s 2012 book Megrahi: You Are My Jury, the most comprehensive analysis of the entire Lockerbie saga, he writes, ‘There was little new that came out in the book or media other than a rehash of what had gone before and the same lines from all parties involved.’ Mr MacAskill, it seems, is not impressed by arguments that really are based on a forensic attention to detail.

To summarise: Mr MacAskill asserts that Fhimah, acquitted by the court, planted the bomb, and that Megrahi, found guilty by the court, did not buy the clothes from Tony Gauci’s shop. He also acknowledges that without Gauci’s identification of Megrahi as the purchaser, the case against him would have collapsed. This, then, is the new position of the Cabinet Secretary for Justice who, while in office, repeatedly articulated the Scottish Government’s view that it ‘did not doubt the safety of Megrahi’s conviction’. So, too, did the then First Minister Alex Salmond, who nevertheless endorses Mr MacAskill’s book as ‘the most credible explanation yet published of who was really responsible for the downing of Pan Am flight 103’. They cannot have it both ways: either they think the judges got it right, or they think they got it wrong.

Mr MacAskill admits that, had Megrahi’s second appeal reached court, his conviction might well have been overturned. He then makes this shameful comment: ‘But, this account of how the bombing was carried out and by whom is based on information gathered meticulously by police and prosecutors from the US, Scotland and elsewhere. It’s also founded on intelligence and sources not available for a court or that have only come to light thereafter.’

Well, that’s all right then. Megrahi didn’t buy the clothes, the grounds of his conviction were shaky at best, but we know from other sources that he was involved and anyway he’s dead now, so that’s good enough for the Scottish justice system.

If Mr MacAskill does have information pertinent to this still ‘live’ case, he is duty-bound to share it with the police. Police Scotland are currently concluding a major, three-year investigation, ‘Operation Sandwood’, into nine allegations of possible criminality on the part of police officers and Crown representatives during the original investigation and trial. These allegations were made by the organisation Justice for Megrahi (of which I am a member) and six of them were first drawn directly to Mr MacAskill’s attention, in strict confidence, on 13 September 2012. They were passed from his office to the Crown Office, which immediately, before the police had even begun to investigate them, made a public statement declaring the allegations to be ‘without exception, defamatory and entirely unfounded’. Some of the allegations relate to the very aspects of the case that Mr MacAskill now says the court got wrong.

For more than a quarter of a century the Lockerbie case has been a dark stain on the Scottish justice system. Kenny MacAskill rubs and rubs at that stain. Whatever his intent, the effect is not to make it vanish but to make it look far worse.