[This is the headline over the fifth and final instalment of Dr Morag Kerr’s series of articles on the Lockerbie case. It appears in the April edition of iScot magazine and reads in part:]
Not even those who believed Abdelbaset al-Megrahi was guilty of the Lockerbie bombing ever imagined he acted alone. This was always understood to have been an act of state-sponsored terrorism, and the official line was that Colonel Muammar Gaddafi had ordered the attack in revenge for the US bombing of Tripoli and Benghazi two years earlier in 1986. Megrahi was merely the pawn who had been caught. However, the acquittal of his co-accused Lamin Fhimah, who had originally been proposed as the man who put the bomb on the plane, left the identity of the other conspirators entirely up in the air.
Recognising this, the Lockerbie investigation remained live even after Megrahi’s conviction. Initially it was largely a paper exercise, and the search for his supposed accomplices was seldom mentioned before August 2009, when he was released on compassionate grounds. Instead the debate centred around whether Megrahi himself had been wrongly convicted, with the SCCRC report of 2007 enumerating no less than six grounds on which they believed a miscarriage of justice might have occurred.
Megrahi’s abandoning of the resulting appeal a few days before his release is mired in controversy. On the face of it, the timing strongly implies some sort of quid pro quo. His advocate Maggie Scott stated straight out that her client had been forced to give up the appeal as a condition of being allowed to return to Libya, but Kenny MacAskill, Justice Secretary at the time, has always denied putting pressure on Megrahi.
Following Megrahi’s return to Libya the Crown Office announced that it was pursuing fresh inquiries into the circumstances of the bombing, with a team of detectives assigned to the case and forensic evidence being reviewed. Initially this was assumed to be a new, open-minded investigation prompted by the very real doubts highlighted by the SCCRC. However, it soon became clear that it was anything but. Despite Megrahi’s continuing protestations of innocence and the SCCRC’s findings remaining untested in court, the Crown Office decided to treat his withdrawal of appeal proceedings as a de facto admission of guilt. There was to be no question of reconsidering the case against Megrahi. The new investigation was focussed, exclusively, on identifying his presumed accomplices.
Initially the Gaddafi regime provided at least token co-operation, but little progress was made in the first two years. In late 2011 the fall of Gaddafi provided an entirely new playing field, with the Libyan rebels anxious to curry favour with the western powers, and in particular to lay the blame for every evil deed of the past forty years firmly at Gaddafi’s feet. Nevertheless, this again amounted to very little. The only relevant document found in the aftermath of Gaddafi’s overthrow was a letter from Megrahi to a Libyan official, in which he protested his innocence and asked for help to clear his name. Several renegade Gaddafi-era officials anxious to reposition themselves in the new order advertised that they had evidence that Gaddafi had personally ordered the bombing of Pan Am flight 103, but this “evidence” turned out to be no more than a declaration that Megrahi wouldn’t have dared to do such a thing without an express order from Gaddafi, and pointing out the well-known fact that Gaddafi had paid for Megrahi’s legal representation and supported him while he was in prison. The Crown Office issued periodic press releases emphasising their commitment to identifying the “others” with whom Megrahi had supposedly acted, but details of any actual progress were scanty to nonexistent.
Meanwhile those campaigning for Megrahi’s conviction to be reviewed were also active. Members of the committee of Justice for Megrahi were concerned that not only were there serious grounds for believing the conviction to be a miscarriage of justice, but that the original inquiry and court proceedings might well have been tainted by misconduct. After considerable discussion and soul-searching it was decided to lay these suspicions before the relevant authorities.
Formal allegations of criminality were drawn up against a number of individuals involved in both the 1988-92 police investigation and the 2000-01 court proceedings, eventually amounting to nine allegations in total supported by a 63-page dossier of evidence and legal argument. Given that these allegations involved members of the Dumfries and Galloway police force and Crown Office personnel, it was difficult to know to whom the dossier should be submitted. Accused bodies can’t themselves investigate the accusations against them – can they? A letter was sent to Kenny MacAskill asking, in confidence, how Justice for Megrahi should proceed.
The reply was that the allegations should be submitted to the Dumfries and Galloway constabulary. While JFM was unhappy with this instruction there was no option but to comply, and the dossier was sent to the then Chief Constable of the D&G, Patrick Shearer. The reaction from the Crown Office was even more disconcerting. Even before the detailed allegations had been submitted the Lord Advocate Frank Mulholland branded them “deliberately false and malicious” in the pages of the Scotsman, and dismissed the Justice for Megrahi group as “conspiracy theorists”.
The initial 2013 investigation of the allegations was unimpressive. (...)
The establishment of Police Scotland, combined with some pointed complaints, heralded a transformation. A team of detectives was assigned to investigate the allegations, codenamed “Operation Sandwood”. These officers have been working diligently on the material submitted by JFM for over two years. Although a report was originally expected by the summer of 2015, the need to follow up additional leads and the desire to do a thorough job caused this to be postponed, and submission is currently expected in May 2016.
The allegations cover three main headings. First, that the original police and forensic investigation ignored or sidelined crucial evidence demonstrating that the bomb was already in the baggage container an hour before the feeder flight from Frankfurt landed at Heathrow. Second, that while police and forensic investigators knew very well that the metallurgical analysis of the printed circuit board fragment PT/35b showed that it had never been part of one of the MST-13 timers supplied to the Libyan armed forces, this information was concealed from the defence and the court, even to the point of a witness giving misleading testimony in the witness box. Third, that the handling of the witness Tony Gauci was improper even by the standards of 1991-92, with the police investigation focussed on acquiring statements that could be represented as identifying Megrahi as the man who bought the clothes packed in the bomb suitcase rather than investigating dispassionately whether this was actually likely to be the case. A fourth ground concerns misleading and untrue information supplied to the court by a member of the prosecution team, concerning the credibility of the witness Abdul Majid Giaka.
Thus, for the past two years, two fundamentally conflicting Lockerbie inquiries have been ongoing within Police Scotland. The Crown Office’s own investigation, predicated entirely on the assumption that the bomb was introduced into the airport baggage system on Malta, and Operation Sandwood, which is examining evidence showing that the crime happened at Heathrow airport. Something has to give.
The Lord Advocate has made it entirely clear that he gives credence to one position and one position only, the Malta origin theory. (...)
Operation Sandwood is due to submit its report in a few weeks time. The dispute now centres on who will consider that report and decide whether charges should be brought as a result of the investigation. As Crown Office personnel are among those accused, Justice for Megrahi strongly believes that the Crown Office should stand aside in favour of an independent prosecutor appointed from another jurisdiction. The Lord Advocate however insists that the report will be considered by the Crown Office, merely conceding that he will not personally become involved in the process.
The Lord Advocate has fatally compromised his own position. He has repeatedly attacked Justice for Megrahi in the most intemperate manner, publicly denouncing the original allegations as “defamatory, deliberately false and malicious” before he had even read them. How or why the organisation he heads should not be excluded from the process on the same grounds has not been explained. At a press conference on 16th March 2016 Mr. Len Murray, one of Scotland's most distinguished court practitioners and committee member of Justice for Megrahi, denounced Mr. Mulholland’s behaviour as scandalous and declared that his position was now untenable.
Nevertheless, this is perhaps not the fundamental issue. If Operation Sandwood recommends criminal proceedings should follow as a result of their investigations, the law should take its course. However, such a recommendation is by no means certain. If there is insufficient evidence of wrongdoing to warrant any prosecutions, should the matter end there?
The reputation of Scotland’s criminal justice system rests on how this matter is handled. A scandal of monumental proportions is brewing. If the Operation Sandwood report confirms that the original Lockerbie investigation was completely off the rails, that it was looking for the bomb in the wrong airport, that it accused Libya on the basis of a fragment of printed circuit board that was never part of a device supplied to that country, and that it cajoled and bribed a witness to identify a man he’d never seen before as the purchaser of the clothes packed in the bomb suitcase, this cannot and must not be buried in top secret archives to spare the blushes of the Crown Office.
The answer to the most fundamental question about the Lockerbie disaster lies within the report being prepared by the Operation Sandwood detectives. Where did the bomb that blew apart Pan Am flight 103 nearly six miles above the town begin its journey? The people of Scotland, and the relatives of the dead, have the right to know.
[RB: This blog’s coverage of the four previous articles by Dr Kerr can be found here.]
