“I think Megrahi’s name will be cleared”

[What follows is the text of an article published on this date in 2009 in Lockerbie’s local weekly newspaper The Annandale Herald:]

Lockerbie mystery will remain

“I think Megrahi’s name will be cleared. Beyond that I doubt if we will ever now find out who or what actually caused the destruction of Pan Am 103.”

These are the words of Lockerbie-born retired law Professor Robert Black who has spoken exclusively to DNG Media’s Carol Hogarth in the lead up to the start of the Lockerbie bomber’s second appeal hearing later this month.

Mr Black, who now splits his time between homes in Edinburgh and South Africa, is credited as one of the architects of the original Lockerbie trial at Camp Zeist in the Netherlands. He is a founder member of the Justice for Megrahi campaign, set up after the terminally ill Libyan Abdelbaset Ali Mohmed Al Megrahi was refused bail last year.

Megrahi was convicted in 2001 of planting the bomb on Pan Am Flight 103 which exploded over Lockerbie on December 21, 1988, killing 270 people, including eleven Lockerbie residents.

Q. Can you explain your family connection with Lockerbie?

A. I was born at Peatford, on the outskirts of the town (near the Queen’s Hotel) in June 1947. My father, Jim, was a plumber, working then for Drummond’s and later for Carruthers & Green. When I was five we moved to Hillview Street, where my parents lived until they died in the 1990s. I attended Lockerbie Academy from 1952 to 1961 (then Dumfries Academy from 1961 to 1964). For a number of years my mother, Jean, ran the small grocer’s shop (now closed) in Hillview Street. My father’s brother was the local molecatcher (as their father had been) and his son, my cousin, still carries on the business.

Q. How do you remember the town from your youth?

A. The town was a good place to grow up in. It was quiet and safe. Children could play unsupervised in the streets, in the parks, in the woods and on the golf course. I remember swimming in the Annan and the Dryfe. I remember the people all knowing each other and being friendly and open. I suppose there must have been some conflict and crime, but that never impinged on my consciousness as a child.

Q. Where were you and what were you doing when Pan Am flight 103 exploded over the town in December 1988?

A. The first news of the Lockerbie disaster came to me through BBC radio. I was at my home in Edinburgh (I had become Professor of Scots Law at Edinburgh University in January 1981) preparing my evening meal with, as usual, my wireless tuned to Radio Four. I immediately tried to telephone my mother, but all the lines were down and I could not get through. Shortly after 8pm a university colleague phoned me. She said television programmes had been interrupted to announce that a plane had crashed on Lockerbie. Knowing I did not have a television set (and twenty years later I still don’t) she assumed I would not have received the news. As the gravity of the incident became clearer, so my concern for the safety of my mother and father increased. However, at around 8.15, I received a phone call from my niece, at that time a nurse in a hospital in Glasgow. It transpired she had actually been on the phone to my mother when the plane came down and, because the line was not cut until a few minutes thereafter, was able to confirm that her grandmother and grandfather had not been killed or injured. At the actual moment of impact, my father had been outside the house, posting a letter in the pillar box just across the road. He rushed to the alleyway between the houses and sheltered there while small items of debris rained down on the street.

Q. You are credited with being one of the “architects” of the first trial at Camp Zeist. What was your involvement at that time?

A. My personal involvement in the aftermath of the destruction of Pan Am 103 began in early 1993. I was approached by representatives of a group of British businessmen whose desire to participate in major engineering works in Libya was being impeded by the UN sanctions that had been imposed on Libya in an attempt to compel the surrender for trial in Scotland or the United States of America of their two accused citizens. They asked if I would be prepared to provide independent advice to Libya with a view (it was hoped) to persuading them their citizens would obtain a fair trial if they were to surrender to the Scottish authorities. I submitted material setting out the essentials of Scottish solemn criminal procedure and the various protections embodied in it for accused persons. It was indicated to me that the Libyan government was satisfied regarding the fairness of a criminal trial in Scotland but, since Libyan law prevented the extradition of nationals for trial overseas, the ultimate decision would have to be one taken voluntarily by the accused persons themselves.

For this purpose a meeting was convened in Tripoli in October 1993 of the international team of lawyers appointed to represent the accused. I am able personally to testify to how much of a surprise and embarrassment it was to the Libyan government when the outcome of the meeting of the defence team was an announcement that the accused were not prepared to surrender themselves for trial in Scotland. At a private meeting I had in Tripoli a day later it was explained to me the primary reason for the unwillingness of the accused to stand trial in Scotland was their belief that, because of unprecedented pre-trial publicity over the years, a Scottish jury could not possibly bring to their consideration of the evidence the impartiality and open-mindedness accused persons are entitled to expect and that a fair trial demands.

I returned to Tripoli and in 1994 and presented a detailed proposal that a trial be held outside Scotland, ideally in the Netherlands, in which the governing law and procedure would be that followed in Scottish criminal trials on indictment but with the jury of 15 persons replaced by a panel of judges. In a letter to me it was stated the suspects would voluntarily surrender themselves for trial before a tribunal so constituted. The Deputy Foreign Minister of Libya stated his government approved of the proposal. I submitted the relevant documents to the Foreign Office in London and the Crown Office in Edinburgh. Their immediate response was that this scheme was impossible, impracticable and inherently undesirable, with the clear implication that I had taken leave of what few senses nature had endowed me with. However, from about late July 1998, following interventions supporting my “neutral venue” scheme from, amongst others, President Nelson Mandela, there began to be leaks from UK government sources to the effect that a policy change over Lockerbie was imminent; and on 24 August 1998 the governments of the United Kingdom and United States announced they had reversed their stance on the matter of a “neutral venue” trial. And after a number pitfalls were avoided, the suspects surrendered themselves for trial.

Q. What is your view of the legal process involving the case since then?

A. The outcome of the trial was a real shock. Since the day of the verdict I have consistently maintained the conviction of Abdelbaset Megrahi was contrary to the weight of the evidence and that the finding of guilt against him was a conclusion no reasonable tribunal could have reached on that evidence. I am glad to say my view appears to be shared by the Scottish Criminal Cases Review Commission, for this is one of the grounds on which it referred Megrahi’s case back to the High Court for a further appeal. As someone who has practised, taught and (as a part-time judge) administered the criminal law of Scotland for 35 years, I can confidently say that, in my opinion, the conviction of Megrahi is the worst and most blatant miscarriage of justice to have occurred in Scotland for a hundred years.

Q. What led to the formation of the Justice for Megrahi campaign?

A. What precipitated the establishment of the campaign was the refusal by the High Court to release Megrahi on bail pending his appeal, even though advanced and incurable prostate cancer had been diagnosed. The campaign is intended to create a climate of opinion in which his release on bail by the court, or his compassionate release by the Scottish Government, can be achieved so he can spend what time remains to him with his family at their house in Newton Mearns.

Q. What is your experience of meeting and working with victims’ families?

A. One of the great privileges accorded to me through my involvement in the Lockerbie case has been meeting, and forming friendships with, relatives of individuals killed aboard Pan Am 103: delightful people like Jim and Jane Swire, John and Lisa Mosey and Marina Larracoechea. My contacts with other relatives, particularly some American ones, have been less pleasurable. For some of them, anyone who expresses anything less than absolutely uncritical acceptance of the trial verdict and of Libyan culpability is a rogue and a scoundrel. How they will cope with the quashing of Megrahi’s conviction (which I believe to be inevitable if the current appeal goes the full distance) I hesitate to think.

Q. Do you have contact with Megrahi and can you give us an idea of the current state of his health?

A. I have had no direct contact with Megrahi since I visited him in Greenock Prison some considerable time before his prostate cancer was diagnosed. From recent interviews that his wife, Aisha, has given, it seems his condition is deteriorating.

Q. The second appeal hearing is due to start at the end of April. What are your expectations of that?

A. If the appeal goes the full distance, I have no doubt whatsoever that Megrahi’s conviction will be quashed. But if his medical condition deteriorates dramatically, he may decide to apply for transfer back to Libya to die there in the bosom of his family. It is a condition of applying for prisoner transfer that there be no live legal proceedings in that prisoner’s case. This means in order to qualify, Megrahi would have to abandon his present appeal. I am cynical enough about Crown Office and Scottish Government Justice Department motives to believe this is the outcome these bodies devoutly wish to achieve. There are those — civil servants and others — whose careers and reputations have been built upon the Lockerbie conviction. For them, the ideal outcome is for the current appeal to be abandoned. If it proceeds the full distance, embarrassment (and perhaps worse) are inevitable.

Q. What is it about the Lockerbie case in general that has kept you so involved over the years?

A. The injustice of it. Abdelbaset Megrahi should never have been convicted. This is so obvious to anyone who looks at the evidence and at the trial court’s judgment that there must be something wrong with a system that has already taken more than eight years to reach a point where it might just be about to be rectified.

Q. Do you think there will ever be a satisfactory conclusion to the Lockerbie case?

A. I think Megrahi’s name will be cleared. I only hope he is alive to see it. Beyond that, I doubt if we will ever now find out who or what actually caused the destruction of Pan Am 103. The political (and indeed journalistic) will to investigate what truly happened seems to me to be lacking. And people like me and like those relatives who have never been convinced by the officially-approved explanation are growing old and tired. Clearing Megrahi is the best that we can hope to achieve, I’m afraid.

International pressure for neutral venue Lockerbie trial

[What follows is excerpted from a press release issued by the United Nations Security Council on this date in 1998:]

The Security Council this morning heard of a proposal by the League of Arab States aimed at resolving the situation for which the Council had imposed sanctions upon Libya following the 1988 bombing of Pan Am flight 103 over Lockerbie, Scotland (...)

The proposal offers three options for the trial of the two Libyan nationals suspected in the Lockerbie bombing -- they could be tried in a neutral country chosen by the Council, at the World Court in The Hague by Scottish judges, or in a special tribunal to be created at The Hague. The League's Observer at the United Nations said the proposal had been formulated in consultation with the Organization of African Unity (OAU) and the Organization of the Islamic Conference.

Under its resolution 748 (1992) and 883 (1993), the Council imposed a wide range of aerial, arms and diplomatic sanctions on Libya pending its renunciation of terrorism and its action to ensure the appearance of those charged with the Lockerbie bombings before the appropriate courts in the United Kingdom or the United States. (...)

Many speakers today drew attention to two recent decisions by the International Court of Justice on cases submitted by Libya against the United States and United Kingdom. In those cases, Libya held that those countries did not have the right to compel it to surrender the suspects. Libya also argued that the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation authorized Libya to try the suspects itself. The Court found that it had jurisdiction to deal with the merits of the cases, that the Libyan claims were admissible, and that it would take action to consider them.

Addressing the Council, the representative of Libya said his country had been suffering from collective sanctions for the past six years, without a court judgement or a legal basis for them. Like the families of the bombing victims, Libya was anxious to have the two suspects brought to trial in a just and fair court in a neutral country and to uncover the truth.

He said his Government had urged the suspects to appear before a Scottish court, but they had refused on their lawyers' advice, stating they had already been condemned in the United Kingdom and the United States as a result of biased media coverage and official statements. Libya asked that the suspects be treated in the same manner as the American citizen accused in the Oklahoma City bombing, whose trial venue had been transferred from the state where the crime was committed.

The representative of the United States said that the World Court's rulings involved technical, procedural issues and in no way questioned the legality of the Security Council's actions affecting Libya or the merits of the criminal cases against the two accused suspects. It had simply said that the parties must now argue the legal merits of the case. While the case was proceeding, Libya must comply with its obligations under the Council decisions and turn over the two suspects for a fair trial.

The representative of the United Kingdom expressed the hope that the OAU and the Arab League would not be used to undermine the Council's resolutions, and that their influence would eventually be used to bring about Libya's acceptance of international law and justice for the victims. He said an expert mission sent by the Secretary-General had concluded that the Scottish legal system was fair and independent, that the accused would receive a fair trial under the Scottish judicial system, and that their rights would be fully protected during all phases of the trial proceeding in accordance with international standards.

Politics and justice: the Lockerbie trial

[On this date in 2008, a transcript was published on the website of ABC Australia of a radio programme broadcast in September the previous year. The transcript reads as follows:]

Keri Phillips: This is ABC Radio National. Keri Phillips here with Rear Vision.

Newsreader: In what could be one of the world's worst air disasters, a Pan Am jumbo jet has crashed into a small village in Southern Scotland.

Reporter: It hit a petrol station in the centre of the town of Lockerbie. Police say there are many casualties.

Man: We initially heard a rumbling over the hotel. We thought the roof was falling in, and then we heard a tremendous shudder on the ground, as though it was an earthquake.

Keri Phillips: Two hundred and seventy people died when Pan Am flight 103 blew up over Lockerbie, a few nights before Christmas in 1988. Although sabotage was not immediately assumed, once the cause was identified as a bomb planted inside a cassette player, suspicions fell initially on a Syrian-backed group, the Popular Front for the Liberation of Palestine, General Command - the PFLP-GC, possibly acting for Iran, which had threatened revenge for the mistaken American downing of an Iran Air passenger plane a few months earlier. But by the time anyone was charged over Lockerbie, it was two Libyan men who were indicted in 1991. Negotiations between Libya and the US and the UK over how the trial would proceed took years, but finally in 2001, one of the men, Abdel Basset al-Megrahi, was found guilty of placing the suitcase containing the bomb on the plane and he is now serving a life sentence in a prison near Glasgow. Recently however, after mounting disquiet over the original finding, the Scottish Criminal Cases Review Commission has decided to refer Megrahi's case to the High Court, a step it takes in cases where it believes there may have been a miscarriage of justice.

Today on Rear Vision, we'll look at what happened at the original trial and hear from three men who are relieved that Megrahi will finally have a chance for a proper appeal against his conviction.

Robert Black, QC, is the former Professor Emeritus of Scots Law at the University of Edinburgh. It was he who proposed that a non-jury trial under Scottish law be held at a neutral venue in the Netherlands.

Robert Black: Normally, trial for a major crime in Scotland like murder, would be before a single judge, sitting with a jury of 15 people. Now the Libyan defence team were not convinced that their clients could get a fair trial before an ordinary Scottish jury of 15 people. There had been so much advance publicity about the Lockerbie affair and much of that advance publicity simply assumed as true the government contentions about who was responsible for the atrocity, namely these two Libyan men, and it was in that context that I came up with the idea of having a trial under Scottish procedure, but without a jury. And also because they were worried about the physical safety of their citizens if they were tried in Scotland, I also suggested that perhaps the trial should be held in a neutral country, like the Netherlands. And so that was the basis upon which I put forward the original proposal, and the Libyan government and the Libyan defence team accepted that proposal within hours of my formally submitting it to them in writing.

But then there was a delay of about four and a half years until the government of Britain and indeed the government of the United States consented to it, largely because they didn't want to be seen for public relations purposes, to be making any concessions to Libya. Libya was a rogue state, a pariah State, and the attitude of Britain and America that there had to be an ordinary trial either in Scotland or in the United States, simply meant that there never would be a trial at all. And eventually after a long time, I think Britain and America realised that.

Reporter: In Tripoli there was much ceremony when in front of 40 Libyan and Arab and South African diplomats, the two men were handed over to the UN's Chief Legal officer, Hans Korel. Wearing business suits and flashing victory signs, Megrahi and Fahima looked confident as they boarded the special UN flight to Holland.

Keri Phillips: Attention had switched to Libya after the first Gulf War, when, some suggest, Iran became an important Western ally. For those who'd lost loved ones, the beginning of the trial in 2000 was a relief, although some were mystified that the responsibility had been shifted from Iran to Libya. Jim Swire lost his 24-year-old daughter, Flora, on Pan Am 103.

Jim Swire: We had had meetings with politicians in all sorts of different countries in Cairo and in Britain and Libya, including three visits to see Colonel Gaddafi himself, and once the indictments were issued, it was an extraordinary event, because we knew that up until that point the criminal investigation had been presuming that Iran was behind it, because she had the strong motive of having had her airbus shot down two months before by the Americans, and that the Syrian terrorist group had been the executives because they were known to have the technology that fitted perfectly for what had happened.

That was the basis behind my thinking at the time. But we had been told also by a chap called Douglas Hogg who was No.2 to the Foreign Secretary, Douglas Hird in Britain at the time, that there was no evidence against any nation other than Libya, and we knew that that statement simply wasn't true, and we couldn't find ourselves believing what we were told. So my position was that I needed the court case to confirm to me that what the politicians were telling me, which was that of course it was a Libyan job from beginning to end, what are you worrying about? I hoped that the court would confirm that. In fact, the court had exactly the opposite effect. I went into the court thinking these just be the guilty guys who blew up my poor daughter, and I came out of thinking Well these clearly were not the guys, so who the heck was it who did do it and why am I being mistakenly led to believe that these two were responsible when clearly they weren't.

Robert Black: Many outside observers, including myself, couldn't actually understand the reason for this shift in attitude, because I have seen the official minutes of the investigation into Lockerbie, and it is perfectly plain from those official minutes that the investigators at that time were convinced that they had the solution to Lockerbie, and it had nothing to do with Libya and it had everything to do with the PFLP-GC, the Palestinian group. But suddenly, and for no good reason that I can see, the focus of attention changed.

Keri Phillips: Robert Black, who'd continued to take a close interest in the case, says that during the trial the weakness of the evidence against Libya was revealed.

Robert Black: The evidence that was led by the prosecution was much as I think followers of the affair had anticipated. So there were no, I think, real surprises in the prosecution case. But what I think did come as a surprise to some people was how weak some of that evidence turned out to be, particularly the evidence linking Mr Megrahi with Malta, and with the purchase of the clothes which surrounded the bomb. Now these clothes were purchased, so the Crown contended, in a particular shop in Malta. And one of the main planks of the prosecution case against Megrahi was to establish that he was the person who had bought those clothes in that shop in Malta. I think it was partly the problem of the witness, the shopkeeper who actually sold the clothes. He never actually came out and positively said 'I identify Abdel Bassett Megrahi as the person who bought the clothes in my shop.' The most that he would say and the most that he ever said in the run-up to the trial, and in the trial itself, was that Megrahi resembled a lot the person who bought the clothes.

But he had also, in the past, given descriptions of the person who came into the shop and bought these clothes. And that description did not in any way tie up with the physical appearance of Megrahi. For example, in his first statement to the police, the shopkeeper said, 'The person who came into my shop and bought the clothes was over 6-feet tall and was more than 50 years of age'. Now Abdel Basset Megrahi at the relevant time was 36 years old, and was 5-feet 8-inches tall. This came out at the trial. The judges accepted that the shopkeeper effectively had identified Megrahi as the person who bought the clothes, which he never did. And as I say, most neutral, unbiased observers thought that that was an absolutely perverse decision by the judges on the evidence which had been led in court. If it had not been that the court wrongly, in my view, accepted that it had been established that Megrahi was the person who bought the clothes in Malta, there would have been no justification whatever for convicting him. There really wasn't any other significant evidence at all against Megrahi.

Keri Phillips: Today's program is revisiting the conviction of Abdel Basset al-Megrahi for the bombing of Pan Am flight 103 over Lockerbie in 1988, after a Scottish Judicial Commission has decided that there may have been a miscarriage of justice.

Reporter: After such an exhaustive trial the verdict in the case against the two Libyan men charged with blowing up Pan Am flight 103, was something of a surprise. Hopes were high but few people really expected a conviction. In the end though, the three Scottish judges agreed that the prosecution had proved beyond reasonable doubt that one of them, Abdel Basset ali-Mohamed al-Megrahi was the man who planted the bomb.

Keri Phillips: Professor Black says that one of the other mysterious aspects of the case is that only one of the Libyans was found guilty.

Robert Black: This is very, very surprising, isn't it, because the basis of the Crown's case against the Libyans was that Megrahi was the brains behind the plot. The bag-carrier if you like was Fahima, the other accused. But the importance of Fahima in the Crown scenario, the Crown explanation of Lockerbie was that Fahima was the one who had the ability to get the case containing the bomb into the airline baggage handling system, because Fahima was the station chief of Libyan Arab Airlines in Malta, and he was the one, according to the Crown, who could arrange for the suitcase containing the bomb, to be transported as unaccompanied baggage from Malta to Frankfurt, then from Frankfurt to Heathrow and at Heathrow then to be laden on to Pan Am 103. So that was Fahima's role. He wasn't the brains, but he was a necessary instrument in getting this bomb into the airline baggage handling system as unaccompanied baggage.

Now when the trial court held that there was not actually sufficient evidence to show that Fahima had done any of these things, that left an enormous gap in the Crown case, because they now could not provide an explanation of how this suitcase containing the bomb actually got into the interline baggage transfer system at all, because if Fahima wasn't responsible for it, there was no other explanation. So many people thought it's absolutely amazing that the person who supposedly was the one who actually sent this piece of baggage on its fatal journey, once he's out of the picture, how on earth are you still able to convict the other man?

Keri Phillips: Professor Hans Köchler is a specialist in political and legal philosophy at the University of Innsbruck. He was appointed by UN Secretary-General Kofi Annan to attend the trial as an observer for the United Nations.

Hans Köchler: In brief, the trial was in both phases, the trial itself, plus the first appeal from 2001 to 2002, both of the proceedings were not fair, there was a lot of political interference, and as I said, at the end of the appeal, I suspected a miscarriage of justice. That means specifically I was of the view that the person who was declared guilty may be the wrong person, that this man who was now sitting in a Scottish jail, may not be guilty as charged.

Keri Phillips: You said that there was political interference; can you spell out for us what kind of political interference there was?

Hans Köchler: To some extent one can spell it out. Of course most of this goes on behind the scenes, but as an observer who is alert to some extent, I noticed and I was the first to make it public, the presence of representatives of foreign governments in the court room interacting during court sessions with the Prosecution team and the Defence team respectively. The one country I refer to is the United States, the other country is Libya. It is totally irregular because that was a Scottish court, and there were two officials of the United States Department of Justice who interacted with the Prosecution team and there was one Libyan lawyer who officially was a kind of adviser of the Defence team, but in fact was a Libyan official. He's deceased by now and he of course interacted with the Defence team. There was absolutely no point if this is a Scottish court, why there should be people representing a foreign governmental interest, first of all sitting next to either Defence or Prosecution in the court room while the court is on session. And secondly, why during the session they should interact with the official actors of the trial. Both of these groups of people should have been placed together with us, the international observers, behind the bulletproof glass wall. That was the place where the observers of the United States Embassy and of the Libyan Embassy were also seated.

Jim Swire: What I do know is that were circumstances surrounding the trial which one can just credibly say may have misled the judges. And those are things like the fact that the body of the evidence was essentially obtained and offered up by intelligence services in the West, particularly of course the CIA and the FBI. And intelligence services are not known as seekers after truth. If they're doing their job properly they will be doing what they believe is in the interests of the country for which they work, and that may or may not coincide with the truth. I think that's fairly self-evident. So that's the first thing. The real powers behind the assembly of evidence were not uninvolved, objective-minded people, they were people who had a job to do, and I think that at Zeist we saw them doing it.

Another thing was that I felt very uncomfortable; there were members of the US State Department in court who appeared to me during the actual hearings to be coaching one or two of the witnesses, by giving the very slightest of nods to indicate that he should answer yes to that question during the proceedings. And to have powerful representatives of the accusing power present in full view of the witnesses and apparently acting in that way, was totally and utterly unacceptable I think. And I think in this context we should remember what the great Nelson Mandela said to us and had published just before President Clinton gave the go-ahead for the trial in the first place, Nelson Mandela went public and told everyone No one country should be complainant, prosecutor, and judge. But if you take the UK and the USA as acting as one entity in this issue, the UK and the USA were the complainants, the prosecutor and really they were the judges.

Robert Black: I think that consciously or subconsciously, these judges appreciated that if neither of the two Libyan accused were convicted in this trial, this would be an enormous embarrassment to the Prosecution system in Scotland. And the person in charge of the Prosecution system in Scotland is an officer called the Lord Advocate.

Now the Lord Advocate is roughly like the Attorney-General in English and English-based legal systems, but in Scotland the Lord Advocate actually was a much more important figure in the legal system, even than Attorneys-General are in English and English-based legal systems, because he was actually at the very head of the criminal justice system. Not only was he the Prosecutor, he was also the person who nominated judges for appointment to the bench.

Every judge in Scotland at the time of the Lockerbie trial had achieved his or her position on the bench through being nominated for appointment by the Lord Advocate. There are those and some of these people are in high positions in Libya, who think that there was overt political pressure placed upon the judges to reach a conclusion that was satisfactory to the British and American governments over Lockerbie.

I myself don't actually believe that the British government or the American government in any way tried to influence the judges to reach a politically acceptable decision. I really do believe that the reason for Lockerbie and what I am convinced was a perverse decision to convict Megrahi is to do with internal Scottish legal politics. It distresses me because I've been a part of the Scottish justice system now for 35 years as an advocate, as a part-time judge, as a teacher of law and procedure, and it actually came as a shock to me that something within the Scottish criminal justice system could go so badly wrong. I mean even the best-regulated system can make mistakes and we accept that, and that's why you've got appeal courts, to put these mistakes right. But Lockerbie was more than that.

Lockerbie brought home to me as I don't think any other case could have done, that actually there is something wrong in the system. It's not just a one-off mistake, there was actually something (I hesitate to use the word, but I think it's justified) there was actually something rotten about the system. And as I say, as somebody who's been involved in that system in one capacity or another for 35 years, I found that personally very distressing.

Keri Phillips: Some, like Daniel Cohen, an American who lost his 20-year-old daughter, Theodora, in the explosion, remain convinced that Libya was responsible, but for Jim Swire:

Jim Swire: What I would like to come out of this is first and foremost no more delays; I think Megrahi should be sent home and his verdict should quashed. I as an individual think that he as an individual deserves that, a profuse apology and compensation and so on for what happened to him as a result of what I believe to have been a deeply flawed trial. But the other thing is, that will leave of course the world saying OK, well if those guys didn't do it, then who did? And trying to divine what the vibes are telling me that I pick up, I mean there are some very professional people involved in the run-up to the next appeal who quite rightly won't tell me things that professionally they shouldn't tell me.

But I divine that there is now new evidence concerning the Lockerbie case, which will point us strongly in the correct direction, whatever that may be. I think it'll be Iran and Syria, but whatever that direction may turn out to be, I think incidentally it could also be Egypt, but that's another issue. But wherever it does point us, I think it will give us a helping hand towards discovering the truth, and all we've asked for over the past 18 years in this context is truth and justice, and so far I think we've had neither and I think that we will be asking very serious question about why we have been kept at arm's length and denied the truth for 18 years.

Robert Black: I know that people like Dr Jim Swire who have never been convinced of Megrahi's guilt, even after sitting through the whole of the trial and listening to all of the evidence, their view has been all right, we think an innocent man was convicted and we will fight to get him released. But I think their motivation was largely to the effect that until we get this miscarriage of justice rectified, there will always be a blockage in our path towards finding out the truth about Lockerbie, because every time we say to governments Hold an inquiry into what happened at Lockerbie, the government says we don't need to. We've had a trial and a man's been convicted. We know what happened at Lockerbie. Why are you asking for an inquiry?

So to people like Jim Swire you've got to get the blockage caused by Megrahi's conviction removed, and then you can go back to government and say OK, now what reason can you come up with for not holding an inquiry into Lockerbie? And so I think that's part of Jim Swire's motivation, and I support him in that, but I honestly don't think that even if we have an inquiry, that will lead with any certainty to a conclusion as to who was responsible. It may point in certain directions but I personally now think too much time has passed and that we will never actually get an answer that beyond reasonable doubt convinces everyone this is what happened at Lockerbie.

Keri Phillips: And it may take a year before Megrahi's case will be heard in a Scottish appeal court.

If you'd like to find out more about this story, do go to the Rear Vision website. I've put a link to Professor Kochler's Lockerbie website there and you can find his reports to the UN, the court judgments and a lot of other articles on the trial.

Technical producer for today's Rear Vision is Jenny Parsonage. I'm Keri Phillips. 'Bye till next time.

Blair appeals to Mandela over Lockerbie

[What follows is a snippet from the Libya: News and Views website on this date in 1999:]

British Prime Minister Tony Blair said in an interview published on Sunday he would appeal to South African President Nelson Mandela to persuade Libya to hand over two men suspected of the Lockerbie bombing for trial in the Netherlands. Blair, who starts a four day visit to South Africa on Tuesday, said negotiations between Britain, the United States and Libya over the 1988 airline bombing had reached an impasse. In the interview with the Sunday Business newspaper, he said Mandela had already played a “unique and important” role in trying to resolve the controversy and he would ask the South African leader to intervene again. “I will explain that we have done all that we reasonably can to resolve the impasse over the trial. The UK-US initiative for a trial in the Netherlands has been on the table for four months,” said Blair. “I will appeal to President Mandela to convince the Libyan government that a third country trial should now proceed,” he added. [Reuters]

[RB: My proposal for a neutral venue trial, agreed to by the Libyan government and defence team, had been on the table for four years and seven months before the UK and US proposal was launched. For Tony Blair to complain that Libya had taken four months to consider the UK/US initiative seems somewhat crass.]

Lockerbie trial sabre-rattling

[What follows is the text of an article that appeared in The New York Times on this date in 1998:]

On the 10th anniversary of the bombing of a Pan Am jet over Scotland, the United States told Libya today that it will face more sanctions if two Libyan suspects are not turned over for trial by a Scottish judge in the Netherlands by February.

''Ten years is much too long to wait for justice,'' said Peter Burleigh, the American representative on the Security Council, which discussed the issue today.

In Libya, however, Col Muammar el-Qaddafi only widened the breach today, apparently rejecting the compromise plan for a trial in the Netherlands by saying that he wanted an international tribunal to hear the case. Earlier this month, Libya's National Assembly seemed to endorse the plan for a Scottish trial after a personal appeal to Colonel Qaddafi from Secretary General Kofi Annan.

''An international court is the solution,'' Colonel Qaddafi told a Dutch television interviewer in a program taped last week and broadcast in the Netherlands today, ''with judges from America, Libya, England and other countries.''

Today, however, at a ceremony at Arlington National Cemetery marking the bombing, President Clinton said the plan to hold the trial in the Netherlands was a ''take it or leave it'' deal. ''We will not negotiate its terms,'' he added.

For years Libya refused to allow American or British courts to try the suspects in the bombing, which killed 270 people, including 11 on the ground in Lockerbie, the Scottish town where the plane came down. In August Britain and the United States offered the compromise of a trial in a third country, and the Netherlands agreed to allow a Scottish court to be set up for that purpose in Utrecht.

But Libya, under United Nations sanctions since 1992, continued to stall, raising questions about the treatment of the suspects and where they would be imprisoned if convicted. British officials and the Secretary General's legal counsel, Under Secretary General Hans Corell, replied exhaustively to the Libyans.

Sir Jeremy Greenstock, Britain's representative at the United Nations, said today that all the questions raised by Libya had been answered.

Arab diplomats say Libya is concerned that the two suspects, Abdel Basset Ali Mohamed al-Megrahi and Lamen Khalifa Fhimah, could be pressed by Western intelligence agencies or trial prosecutors to talk about more than Lockerbie.

Mr. Annan said again today that he remains optimistic that Libya will eventually comply with the request to send the suspects to the Netherlands. But the signs from Libya seem to be pointing in another direction.

In February the Security Council will review the sanctions, which would be suspended immediately if the suspects were handed over.

By February, Mr Burleigh said today, ''the Libyan Government will have had six months to accept the offer it long said it would accept.''

[RB: My neutral venue trial proposal, accepted by Libya, was on the table for four years and seven months before the United Kingdom and United States reluctantly put forward a scheme along the same lines. US criticism of Libya for taking six months to consider the ramifications of that scheme seems somewhat petty.]

The Lockerbie agreement between UK and Netherlands

[On this date in 1998 a treaty was concluded at The Hague between the governments of the United Kingdom and the Netherlands providing for a Scottish court to sit in the Netherlands to try the two Libyans accused of the Lockerbie bombing. The treaty can be read here. What follows is from an article written by me some years ago:]

The details of the arrangement -- the fine print -- are to be found in two documents: a British Order in Council (SI 1998 No 2251), made on 16 September 1998, conferring the necessary legal authority for Scottish criminal proceedings against the two Libyan suspects to be conducted in the Netherlands, and an international agreement between the Government of the Kingdom of the Netherlands and the Government of the United Kingdom, concluded on 18 September 1998, making the diplomatic arrangements necessary for the "neutral venue" trial to take place. (...)

Although the British proposal was announced in late August 1998, it was not until 5 April 1999 that the two suspects actually arrived in the Netherlands for trial before the Scottish court.  Why the delay?  The answer is that some of the fine print in the two documents was capable of being interpreted, and was in fact interpreted, by the Libyan defence team (now chaired by Mr Kamel Hassan Maghur as successor to Dr Legwell) and the Libyan government as having been deliberately designed to create pitfalls to entrap them.  And since the governments of the United Kingdom and United States resolutely refused to have any direct contact with either the Libyan government or the Libyan defence lawyers -- their attitude being that the scheme had been advanced on a “take it or leave it basis” and that no negotiations would be entered into -- these concerns could be dealt with only through an intermediary, namely the Secretary-General of the United Nations, Kofi Annan (or, in practice, the Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations, Hans Corell).   This meant that issues that could have been thrashed out and settled in a matter of a few hours in a face-to-face meeting took weeks and months to resolve.  The US government, particularly the Secretary of State, Madeleine Albright, took every available opportunity to accuse the Libyan government and lawyers of stalling and trying to wriggle out of the assurances they had given over the years to support a “neutral venue” trial.  My own clear impression, however, through my continuing contacts with the Libyans, was that if anyone was looking for pretexts to avoid a trial ever taking place, it was the US and UK governments.

Between 20 and 22 September 1998, Dr Jim Swire and I were again in Tripoli and were able to provide to the Libyan government and the Libyan defence team a measure of reassurance regarding some of the points that concerned them.  However, it was we who had to inform the Libyan government that the chosen location in the Netherlands for trial was Kamp van Zeist, a former NATO base to which the air force of the United States still had extant treaty rights of access.  This information was faxed to me (in Dutch, which I can read  -- with difficulty -- through my knowledge of Afrikaans) at my hotel in Tripoli by a Dutch journalist who had developed an interest in Lockerbie and who had heard it from an official at The Hague.  Dr Swire and I discussed whether we should inform our Libyan government contacts of the intended venue and came to the conclusion that we should do so.  One compelling reason for doing so was to preserve the trust that the Libyan government appeared to have developed in us.  Another was our assumption -- which may or may not have been justified -- that all our communications in Libya were monitored and that the Libyan authorities would have the information anyway as soon as they could arrange for a copy of the fax to be translated from Dutch into Arabic.

I anticipated that the news about the proposed location would cause the Libyans to renounce the "neutral venue" concept in high dudgeon and complain of the lack of good faith demonstrated by the British Government in selecting, or agreeing to, such a site.  But they did not do so.  When we raised the issue at our next meeting, the Libyan officials were remarkably relaxed about the matter.  This, more than anything else, convinced me that the Libyan government and the Libyan defence lawyers genuinely wished a trial to take place and that the concerns they had expressed regarding details of the scheme now on offer were genuine concerns, not merely a colourable pretext for evading their earlier commitment to such a solution.

On 22 September Dr Swire and I had a further meeting with the Leader of the Revolution.  On this occasion the meeting took place not in Tripoli but 400 kilometres to the east in a genuine (not reinforced concrete) Bedouin tent in a desert location inland from the town of Sirte.  We drove most of the way in the usual government black Mercedes, transferring into a 4 x 4 only for the last few off-road miles.  When at the tent nothing could be seen but sand and sky; but out of sight just beyond the nearest dunes was a lengthy convoy of communications vehicles, ambulances, canteen vehicles and troop carriers. 

Surrounded by the sand dunes and by noisily ruminating camels, Colonel Gaddafi, Dr Swire and I discussed the details of the British scheme.  He accepted my assurance that at least some of the concerns that Libyan government lawyers had raised were unwarranted and that it would be worthwhile to continue to seek clarifications and reassurances through the office of the Secretary-General of the United Nations regarding the remaining issues.