[This is part of the headline over an article by Kenny MacAskill in today's edition of The Scotsman. It reads as follows:]
The Scottish Criminal Case Review Commission’s decision to refer the Megrahi case back to the courts really isn’t a surprise. Issues of concern in the Lockerbie bombing trial include not least the witness payments to Tony Gauci.
That isn’t a criticism of those who presided at the Camp Zeist Trial as that wasn’t known to them. But it’s unacceptable in Scottish trials for a witness to be paid. Moreover, the judges then were caustic in comments about another witness who had been rewarded by the CIA. [RB: It is interesting that Mr MacAskill chooses to focus on the payment to Gauci rather than the (much more important) SCCRC finding that no reasonable trial court could have held on the evidence led at the trial that the case against Megrahi was proved beyond reasonable doubt.]
So back the case goes and while it may resolve some aspects relating to Abdelbaset al-Megrahi, I won’t hold my breath that it’ll cast any more light on Lockerbie.
That’s a travesty as since the fall of former Libyan leader Moammar Gaddafi both new information and more importantly new witnesses, if not accused, have come to light.
As the regime collapsed, MI6 got the Foreign Minister Moussa Koussa out and back to London where he was debriefed, firstly by them and then by the Americans.
He’s now living an opulent life in Qatar whilst others that he served with rot in jails in Tripoli. They include Gaddafi’s henchman Abdullah Senussi and even the man believed by many to have been the bomber.
They’ll have been spoken to by the Americans if not the British and other bit-part players were also extracted. Will the information they provided be heard and will any of them even be charged?
Sadly, this review will clarify some questions regarding Megrahi, but I very much doubt it’ll provide closure on Lockerbie.
[RB: Kenny MacAskill is clearly sticking to his position that Lockerbie was a Libyan operation, whether or not Abdelbaset Megrahi was wrongfully convicted. His views, originally expressed in his book, have been cogently crticised, not least by John Ashton here and James Robertson here.]
Thursday 19 March 2020
Wednesday 18 March 2020
Pan Am 103 Lockerbie bombing: Fresh appeal launched to clear Megrahi
[This is the headline over an article by Steve James published today on the WSWS.org website. It reads in part:]
Relatives ... of Abdelbaset Ali Mohmed al-Megrahi have won the right to posthumously appeal his 2001 conviction for murder following a decision by the Scottish Criminal Case Review Commission (SCCRC). (...)
The Lockerbie attack came only six months after an Iranair Airbus, IR655, was shot down in an unprovoked act of mass murder, by the US missile cruiser, the USS Vincennes. In that instance 290 passengers and crew were killed. At the time, most commentary and media coverage assumed that the Lockerbie atrocity was an act of revenge.
From the outset, however, it was apparent there was some level of foreknowledge or complicity on behalf of the US and British intelligence services. Warnings of an attack on Pan Am flights had been issued. PA103, flying just before Christmas, was half empty because of cancellations. On the crash site in Scotland, numerous reports emerged of unrecorded activity by the FBI, items of wreckage being removed under armed guard, and luggage interfered with.
In 1990, UK citizen Martin Cadman, whose son Bill was killed on the flight, attended a briefing at the US Embassy for relatives of victims of the attack. Cadman was, without prompting, told by an unnamed member of the US President’s Commission on Aviation Security and Terrorism, “Your government and ours know exactly what happened and they are never going to tell.”
By 1991, around the time the Iranian government declared its neutrality during the US Desert Storm war on Iraq, the British and US authorities shifted responsibility for Lockerbie to Libya.
Pinning the blame on Libya served to isolate and pressure the government of Colonel Muammar Gaddafi and provided a pretext for punitive economic sanctions, which undermined the North African country’s oil-based economy.
Magrahi’s trial, at Camp Zeist in the Netherlands, was held under Scots law as part of a deal brokered by South African leader Nelson Mandela between the British and Libyan governments. Its purpose was to allow some veneer of legal process on the rapprochement between the two countries, as Gaddafi abandoned his former radical posturing and US and British imperialism eyed the country’s oil resources.
The trial, however, revealed extraordinary inconsistencies in the Scottish Crown Office case. Not least was that there was no proof that Megrahi, a former Libyan intelligence officer, had ever loaded a comparable suitcase in Luqa airport in Malta, no proof that any unaccompanied suitcase had travelled from Malta via Frankfurt to Heathrow, to be loaded onto PA103, and no explanation of how Luqa airport’s rigorous security was overcome.
Nevertheless, Magrahi was convicted and sentenced to 20 years imprisonment, later increased to 27.
In another of countless inconsistencies, Megrahi’s co-accused, Llamen Fhimah was set free. For his part, Gaddafi duly offered compensation to the attack’s victims without accepting Libyan responsibility. [RB: Libya accepted "responsibility for the actions of its officials" and nothing more.]
Megrahi had an initial appeal rejected in 2002, but the passage of time has only increased the perception that he was the victim of a politically motivated frame-up and show trial.
In 2007, the SCCRC authorised another appeal, reporting there was “no reasonable basis” to place Megrahi in Malta where he had been identified as allegedly purchasing clothing identified as being in a suitcase containing the bomb. However, in 2009 Megrahi, in prison in Greenock, was diagnosed with terminal cancer. He was allowed to return to Libya following an understanding reached with the Scottish government that his appeal should be dropped. Megrahi died in 2012, still protesting his innocence.
In 2011, 10 years after the trial, US, French and British imperialism launched a bloody neo-colonial war to overthrow Gaddafi. It ended with Gaddafi being hunted down and butchered. The country was pitched into a catastrophic civil war, which continues to this day.
This latest appeal was launched by Megrahi’s family and [supported by] the Justice for Megrahi (JFM) campaign. This includes relatives of several victims of the disaster such as Dr Jim Swire, who has steadfastly campaigned for the truth around his 23-year-old daughter’s murder on PA103.
JFM members include Robert Black, a lawyer and one of the architects of the original Camp Zeist trial. Another member is former police superintendent Iain McKie, whose daughter Shirley was the subject of a debacle which, in the end, discredited the Scottish Criminal Records Office entire finger-printing methodology. Shirley McKie was charged with perjury before finally being exonerated and compensated.
A SCCRC press statement reported grounds for allowing the new appeal. Referring to the identification of Megrahi as the purchaser of clothing in the bomb suitcase by Maltese shopkeeper Tony Gauci, the SCCRC concluded that “a miscarriage of justice may have occurred because no reasonable trial court, relying on the evidence led at trial, could have held the case against Mr Megrahi was proved beyond reasonable doubt.”
The SCCRC statement found that the Crown failed to “disclose a statement and a police report” confirming that Gauci had photographs of Megrahi in his possession before he identified him. This “deprived Mr Megrahi a real chance of an acquittal.” The commission also found that “reward money to be paid to Mr Gauci under a scheme administered by the US Department of State” meant that “Mr Megrahi was denied a fair trial.”
Gauci was coached by the Scottish police and bribed by the US government—$2 million was eventually said to have been handed over.
The SCCRC rejected further grounds for appeal relating to:
The date on which Megrahi was identified as having been in Gauci’s shop in Malta
* Evidence emerged of the date at which Christmas lights were switched on in Sliema, Malta and which contradicts the prosecution claim that Megrahi made the purchases. Yet, the SCCRC “decided that the fresh evidence in question is not likely to have assisted Mr. Megrahi’s cause.” In a repeated theme, the SCCRC’s pointed to the fact that Megrahi’s defence team “chose not to lead it in connection with his appeal in 2002.”
The metallurgical characteristics of circuit board fragment PT/35(b)
* This fragment was claimed to be part of an MST-13 timer constructed by MEBO AG of Switzerland. The fragment appeared late in the investigation with records of its discovery apparently altered. PT/35(b)’s significance in the case against Megrahi is that it implicated the Libyan government, which had purchased 20 such timers.
Evidence emerged, and was available early in the investigation, to confirm that the MST-13 circuit board fragment could not have been part of the batch of timers sold to Libya, as the board’s soldering had different characteristics from control samples provided by MEBO. When this was made available to Megrahi’s original defence team, they again, for reasons unclear, declined to use it.
The SCCRC nevertheless found that “the decision by the defence team to proceed without investigating the metallurgy issue did not mean that Mr. Megrahi’s defence was not presented to the court.”
Suitcase ingestion at Heathrow
* This is most damaging to the entire case against Megrahi and was clearly explained in the 2013 book Adequately Explained by Stupidity? by JFM member, Dr Morag Kerr.
Kerr makes a detailed and methodical examination of the recorded progress of all items of luggage through Luqa, Frankfurt and Heathrow airports, their position in the luggage container AVE4041 at Heathrow airport, and their subsequent condition and location when discovered on the hills around Lockerbie. Her conclusion is that the bomb suitcase, a Samsonite Silhouette 400, was introduced in London prior to a feeder flight, PA 103A, arriving from Frankfurt carrying any luggage from Malta.
Kerr makes clear that, despite the vast and complex investigation, this suitcase has no known provenance and its owner has never been identified. It was noticed by several airline staff prior to and during transfer to PA 103. It appeared the day after a highly unusual break-in to the Heathrow luggage storage area adjacent to where AVE4041 was loaded.
The SCCRC agreed that “If accepted, this would fatally undermine the Crown case,” but claimed the allegation lacked information highlighted by Operation Sandwood—a four-year police inquiry into allegations of police criminality during the Lockerbie investigation made by JFM.
This counterclaim is not substantiated. Operation Sandwood concluded in 2018 that “no criminality” had been found. Its report has not been published, nor the basis of its findings released.
Learning of the news of the appeal being allowed, Megrahi’s youngest son, Ali, told The Times “If the world discovers the identity of the true bomber, it will have to accept that it was not my father. Those who lost their loved ones deserve to know the truth, who was responsible and why it happened.”
Relatives ... of Abdelbaset Ali Mohmed al-Megrahi have won the right to posthumously appeal his 2001 conviction for murder following a decision by the Scottish Criminal Case Review Commission (SCCRC). (...)
The Lockerbie attack came only six months after an Iranair Airbus, IR655, was shot down in an unprovoked act of mass murder, by the US missile cruiser, the USS Vincennes. In that instance 290 passengers and crew were killed. At the time, most commentary and media coverage assumed that the Lockerbie atrocity was an act of revenge.
From the outset, however, it was apparent there was some level of foreknowledge or complicity on behalf of the US and British intelligence services. Warnings of an attack on Pan Am flights had been issued. PA103, flying just before Christmas, was half empty because of cancellations. On the crash site in Scotland, numerous reports emerged of unrecorded activity by the FBI, items of wreckage being removed under armed guard, and luggage interfered with.
In 1990, UK citizen Martin Cadman, whose son Bill was killed on the flight, attended a briefing at the US Embassy for relatives of victims of the attack. Cadman was, without prompting, told by an unnamed member of the US President’s Commission on Aviation Security and Terrorism, “Your government and ours know exactly what happened and they are never going to tell.”
By 1991, around the time the Iranian government declared its neutrality during the US Desert Storm war on Iraq, the British and US authorities shifted responsibility for Lockerbie to Libya.
Pinning the blame on Libya served to isolate and pressure the government of Colonel Muammar Gaddafi and provided a pretext for punitive economic sanctions, which undermined the North African country’s oil-based economy.
Magrahi’s trial, at Camp Zeist in the Netherlands, was held under Scots law as part of a deal brokered by South African leader Nelson Mandela between the British and Libyan governments. Its purpose was to allow some veneer of legal process on the rapprochement between the two countries, as Gaddafi abandoned his former radical posturing and US and British imperialism eyed the country’s oil resources.
The trial, however, revealed extraordinary inconsistencies in the Scottish Crown Office case. Not least was that there was no proof that Megrahi, a former Libyan intelligence officer, had ever loaded a comparable suitcase in Luqa airport in Malta, no proof that any unaccompanied suitcase had travelled from Malta via Frankfurt to Heathrow, to be loaded onto PA103, and no explanation of how Luqa airport’s rigorous security was overcome.
Nevertheless, Magrahi was convicted and sentenced to 20 years imprisonment, later increased to 27.
In another of countless inconsistencies, Megrahi’s co-accused, Llamen Fhimah was set free. For his part, Gaddafi duly offered compensation to the attack’s victims without accepting Libyan responsibility. [RB: Libya accepted "responsibility for the actions of its officials" and nothing more.]
Megrahi had an initial appeal rejected in 2002, but the passage of time has only increased the perception that he was the victim of a politically motivated frame-up and show trial.
In 2007, the SCCRC authorised another appeal, reporting there was “no reasonable basis” to place Megrahi in Malta where he had been identified as allegedly purchasing clothing identified as being in a suitcase containing the bomb. However, in 2009 Megrahi, in prison in Greenock, was diagnosed with terminal cancer. He was allowed to return to Libya following an understanding reached with the Scottish government that his appeal should be dropped. Megrahi died in 2012, still protesting his innocence.
In 2011, 10 years after the trial, US, French and British imperialism launched a bloody neo-colonial war to overthrow Gaddafi. It ended with Gaddafi being hunted down and butchered. The country was pitched into a catastrophic civil war, which continues to this day.
This latest appeal was launched by Megrahi’s family and [supported by] the Justice for Megrahi (JFM) campaign. This includes relatives of several victims of the disaster such as Dr Jim Swire, who has steadfastly campaigned for the truth around his 23-year-old daughter’s murder on PA103.
JFM members include Robert Black, a lawyer and one of the architects of the original Camp Zeist trial. Another member is former police superintendent Iain McKie, whose daughter Shirley was the subject of a debacle which, in the end, discredited the Scottish Criminal Records Office entire finger-printing methodology. Shirley McKie was charged with perjury before finally being exonerated and compensated.
A SCCRC press statement reported grounds for allowing the new appeal. Referring to the identification of Megrahi as the purchaser of clothing in the bomb suitcase by Maltese shopkeeper Tony Gauci, the SCCRC concluded that “a miscarriage of justice may have occurred because no reasonable trial court, relying on the evidence led at trial, could have held the case against Mr Megrahi was proved beyond reasonable doubt.”
The SCCRC statement found that the Crown failed to “disclose a statement and a police report” confirming that Gauci had photographs of Megrahi in his possession before he identified him. This “deprived Mr Megrahi a real chance of an acquittal.” The commission also found that “reward money to be paid to Mr Gauci under a scheme administered by the US Department of State” meant that “Mr Megrahi was denied a fair trial.”
Gauci was coached by the Scottish police and bribed by the US government—$2 million was eventually said to have been handed over.
The SCCRC rejected further grounds for appeal relating to:
The date on which Megrahi was identified as having been in Gauci’s shop in Malta
* Evidence emerged of the date at which Christmas lights were switched on in Sliema, Malta and which contradicts the prosecution claim that Megrahi made the purchases. Yet, the SCCRC “decided that the fresh evidence in question is not likely to have assisted Mr. Megrahi’s cause.” In a repeated theme, the SCCRC’s pointed to the fact that Megrahi’s defence team “chose not to lead it in connection with his appeal in 2002.”
The metallurgical characteristics of circuit board fragment PT/35(b)
* This fragment was claimed to be part of an MST-13 timer constructed by MEBO AG of Switzerland. The fragment appeared late in the investigation with records of its discovery apparently altered. PT/35(b)’s significance in the case against Megrahi is that it implicated the Libyan government, which had purchased 20 such timers.
Evidence emerged, and was available early in the investigation, to confirm that the MST-13 circuit board fragment could not have been part of the batch of timers sold to Libya, as the board’s soldering had different characteristics from control samples provided by MEBO. When this was made available to Megrahi’s original defence team, they again, for reasons unclear, declined to use it.
The SCCRC nevertheless found that “the decision by the defence team to proceed without investigating the metallurgy issue did not mean that Mr. Megrahi’s defence was not presented to the court.”
Suitcase ingestion at Heathrow
* This is most damaging to the entire case against Megrahi and was clearly explained in the 2013 book Adequately Explained by Stupidity? by JFM member, Dr Morag Kerr.
Kerr makes a detailed and methodical examination of the recorded progress of all items of luggage through Luqa, Frankfurt and Heathrow airports, their position in the luggage container AVE4041 at Heathrow airport, and their subsequent condition and location when discovered on the hills around Lockerbie. Her conclusion is that the bomb suitcase, a Samsonite Silhouette 400, was introduced in London prior to a feeder flight, PA 103A, arriving from Frankfurt carrying any luggage from Malta.
Kerr makes clear that, despite the vast and complex investigation, this suitcase has no known provenance and its owner has never been identified. It was noticed by several airline staff prior to and during transfer to PA 103. It appeared the day after a highly unusual break-in to the Heathrow luggage storage area adjacent to where AVE4041 was loaded.
The SCCRC agreed that “If accepted, this would fatally undermine the Crown case,” but claimed the allegation lacked information highlighted by Operation Sandwood—a four-year police inquiry into allegations of police criminality during the Lockerbie investigation made by JFM.
This counterclaim is not substantiated. Operation Sandwood concluded in 2018 that “no criminality” had been found. Its report has not been published, nor the basis of its findings released.
Learning of the news of the appeal being allowed, Megrahi’s youngest son, Ali, told The Times “If the world discovers the identity of the true bomber, it will have to accept that it was not my father. Those who lost their loved ones deserve to know the truth, who was responsible and why it happened.”
Monday 16 March 2020
Ghosts of Lockerbie stirred with prospect of posthumous appeal
[This is the headline over a report published this evening on the Al Jazeera website. It reads in part:]
On March 11, the Scottish Criminal Cases Review Commission (SCCRC) stirred the ghosts of a painful past when it announced that the conviction of Abdelbaset al-Megrahi for the bombing might have constituted a miscarriage of justice. (...)
Several relatives of victims have also celebrated the legal development.
Jim Swire collaborated with the al-Megrahi family on the SCCRC application. He lost his 23-year-old daughter Flora on the New York-bound flight that exploded over Scotland just 38 minutes after its takeoff from London.
Swire has long believed that al-Megrahi was innocent of the bombing - and is already looking ahead to the next phase of the judicial process which will see the case make its way to Scotland's High Court of Justiciary.
"I'm delighted that the case has been referred back to the Appeal Court - but I'm already concerned about how the case in the Appeal Court will be conducted," Swire, now in his 80s, tells Al Jazeera.
The Glasgow-based legal team highlighted six grounds why al-Megrahi's conviction constituted a grave miscarriage of justice - but the SCCRC upheld just two: "unreasonable verdict" and "non-disclosure" of evidence. (...)
John Mosey, whose 19-year-old daughter Helga was killed in the bombing, also threw his support behind the application.
Speaking to Al Jazeera from his home in England, Mosey, a reverend, said the commission's decision, which prompted him to exclaim "Hallelujah", was the "end of a first step of a long battle".
Like Swire, he remains concerned that the grounds for appeal, as selected by the SCCRC, "are limited".
But the commission's decision will likely reopen painful wounds, especially in the United States where many victims' families and involved law enforcement officials continue to view al-Megrahi as guilty.
However, Richard Marquise, who led the FBI's US Lockerbie taskforce, told Al Jazeera that the "the circumstantial evidence" that put al-Megrahi behind bars in a Scottish jail "was overwhelming".
"I have seen the evidence; know, personally, some of the witnesses and; have read the entire transcript," said the retired special agent of the SCCRC's claim that "no reasonable trial court, relying on the evidence led at trial, could have held the case against Mr Megrahi was proved beyond reasonable doubt".
"Those who passed judgment from an ivory tower were never involved in the investigation, nor did they attend one day of trial."
[RB: Dr Jim Swire and the Rev'd John Mosey attended every day of the trial at Camp Zeist. I did not (and I suspect I may be one of the inhabitants of an "ivory tower" that Richard Marquise is intending to refer to) but, like Mr Marquise I read every day's transcript as it appeared. From the day after the verdict was announced I have expressed the view that no reasonable court could have convicted Megrahi on the evidence led at the trial. That is the unshakeable view that I continue to hold nineteen years later. And the independent and expert SCCRC, after two separate investigations conducted thirteen years apart by two quite separate and different teams, has twice now reached the same conclusion as me. Mr Marquise's protestations are starting to look rather desperate.]
On March 11, the Scottish Criminal Cases Review Commission (SCCRC) stirred the ghosts of a painful past when it announced that the conviction of Abdelbaset al-Megrahi for the bombing might have constituted a miscarriage of justice. (...)
Several relatives of victims have also celebrated the legal development.
Jim Swire collaborated with the al-Megrahi family on the SCCRC application. He lost his 23-year-old daughter Flora on the New York-bound flight that exploded over Scotland just 38 minutes after its takeoff from London.
Swire has long believed that al-Megrahi was innocent of the bombing - and is already looking ahead to the next phase of the judicial process which will see the case make its way to Scotland's High Court of Justiciary.
"I'm delighted that the case has been referred back to the Appeal Court - but I'm already concerned about how the case in the Appeal Court will be conducted," Swire, now in his 80s, tells Al Jazeera.
The Glasgow-based legal team highlighted six grounds why al-Megrahi's conviction constituted a grave miscarriage of justice - but the SCCRC upheld just two: "unreasonable verdict" and "non-disclosure" of evidence. (...)
John Mosey, whose 19-year-old daughter Helga was killed in the bombing, also threw his support behind the application.
Speaking to Al Jazeera from his home in England, Mosey, a reverend, said the commission's decision, which prompted him to exclaim "Hallelujah", was the "end of a first step of a long battle".
Like Swire, he remains concerned that the grounds for appeal, as selected by the SCCRC, "are limited".
But the commission's decision will likely reopen painful wounds, especially in the United States where many victims' families and involved law enforcement officials continue to view al-Megrahi as guilty.
However, Richard Marquise, who led the FBI's US Lockerbie taskforce, told Al Jazeera that the "the circumstantial evidence" that put al-Megrahi behind bars in a Scottish jail "was overwhelming".
"I have seen the evidence; know, personally, some of the witnesses and; have read the entire transcript," said the retired special agent of the SCCRC's claim that "no reasonable trial court, relying on the evidence led at trial, could have held the case against Mr Megrahi was proved beyond reasonable doubt".
"Those who passed judgment from an ivory tower were never involved in the investigation, nor did they attend one day of trial."
[RB: Dr Jim Swire and the Rev'd John Mosey attended every day of the trial at Camp Zeist. I did not (and I suspect I may be one of the inhabitants of an "ivory tower" that Richard Marquise is intending to refer to) but, like Mr Marquise I read every day's transcript as it appeared. From the day after the verdict was announced I have expressed the view that no reasonable court could have convicted Megrahi on the evidence led at the trial. That is the unshakeable view that I continue to hold nineteen years later. And the independent and expert SCCRC, after two separate investigations conducted thirteen years apart by two quite separate and different teams, has twice now reached the same conclusion as me. Mr Marquise's protestations are starting to look rather desperate.]
“We want the world to know it was not our father"
[What follows is excerpted from a report by Marcello Mega in today's edition of The Times:]
The sons of the man convicted of the Lockerbie bombing believe his name must be cleared and that the “true culprits” should be found and brought to justice.
They have welcomed the news that a new appeal has been recommended by the Scottish Criminal Cases Review Commission (SCCRC) for Abdul Baset Ali al-Megrahi, who died in 2012, and said the Scottish legal system had a chance to deliver “true justice”.
Khaled and Ali al-Megrahi have always been grateful to the British relatives of those who died in the bombing for supporting their father, and sympathetic to their plight and their wish to see justice delivered at last.
Ali, the younger son, said: “I have always tried to keep my faith in the Scottish justice system despite the politicisation of this issue in the past.
“We want to show the truth to the world, that our father was wronged and the accusations against him were based on circumstances that did not represent reality.
“We salute Dr [Jim] Swire [whose daughter, Flora, died in the explosion], whose efforts have helped us reach this position, and support all efforts towards finding the truth in this matter. The world needs to know the truth that the bomber was not my father. Discovering the true culprits will help to clear his name and deliver justice for the victims.
“If the world discovers the identity of the true bomber, it will have to accept that it was not my father. Those who lost their loved ones deserve to know the truth, who was responsible and why it happened.”
His brother, Khaled, added: “We have always believed that no one can hide the truth forever. It always comes out and we hope and pray that the full truth of this matter will be known at last.
“We want the world to know it was not our father, and we want the world to know the whole truth, for the sake of our family and also for the sake of Dr Swire and all the other relatives who are still looking for true justice.”
Dr Swire welcomed their support yesterday and said he had felt briefly euphoric when he learnt that there would be a posthumous appeal against al-Megrahi’s conviction. However, he felt crushed minutes later, he said, to read a statement released by the commission, which investigates potential miscarriages of justice, and realise that it had closed the door on key evidence that he said could lead to the real killers.
Dr Swire befriended al-Megrahi and visited him several times in prison in spite of al-Megrahi’s conviction (...)
Since al-Megrahi died in 2012 his family has fought for a posthumous appeal. Dr Swire said: “I never believed it. As the SCCRC said as far back as 2007 and continues to say now, no reasonable court could have convicted on the evidence.”
A spokesman for the Crown Office said: “We’re not in a position to comment on matters that will be before the Appeal Court.” The SCCRC and Police Scotland also declined to comment.
The sons of the man convicted of the Lockerbie bombing believe his name must be cleared and that the “true culprits” should be found and brought to justice.
They have welcomed the news that a new appeal has been recommended by the Scottish Criminal Cases Review Commission (SCCRC) for Abdul Baset Ali al-Megrahi, who died in 2012, and said the Scottish legal system had a chance to deliver “true justice”.
Khaled and Ali al-Megrahi have always been grateful to the British relatives of those who died in the bombing for supporting their father, and sympathetic to their plight and their wish to see justice delivered at last.
Ali, the younger son, said: “I have always tried to keep my faith in the Scottish justice system despite the politicisation of this issue in the past.
“We want to show the truth to the world, that our father was wronged and the accusations against him were based on circumstances that did not represent reality.
“We salute Dr [Jim] Swire [whose daughter, Flora, died in the explosion], whose efforts have helped us reach this position, and support all efforts towards finding the truth in this matter. The world needs to know the truth that the bomber was not my father. Discovering the true culprits will help to clear his name and deliver justice for the victims.
“If the world discovers the identity of the true bomber, it will have to accept that it was not my father. Those who lost their loved ones deserve to know the truth, who was responsible and why it happened.”
His brother, Khaled, added: “We have always believed that no one can hide the truth forever. It always comes out and we hope and pray that the full truth of this matter will be known at last.
“We want the world to know it was not our father, and we want the world to know the whole truth, for the sake of our family and also for the sake of Dr Swire and all the other relatives who are still looking for true justice.”
Dr Swire welcomed their support yesterday and said he had felt briefly euphoric when he learnt that there would be a posthumous appeal against al-Megrahi’s conviction. However, he felt crushed minutes later, he said, to read a statement released by the commission, which investigates potential miscarriages of justice, and realise that it had closed the door on key evidence that he said could lead to the real killers.
Dr Swire befriended al-Megrahi and visited him several times in prison in spite of al-Megrahi’s conviction (...)
Since al-Megrahi died in 2012 his family has fought for a posthumous appeal. Dr Swire said: “I never believed it. As the SCCRC said as far back as 2007 and continues to say now, no reasonable court could have convicted on the evidence.”
A spokesman for the Crown Office said: “We’re not in a position to comment on matters that will be before the Appeal Court.” The SCCRC and Police Scotland also declined to comment.
Sunday 15 March 2020
The Scottish criminal justice system got Lockerbie disastrously wrong
[What follows is excerpted from a report by Judith Duffy in today's edition of The National:]
The lawyer who was the architect of the Lockerbie trial believes the overturning of the conviction of Abdelbaset al-Megrahi would renew pressure for a full inquiry into the disaster.
Last week the family of Megrahi, who died in 2012, was granted permission to appeal his conviction. (...)
Professor Robert Black QC, below, who believes there was a miscarriage of justice, said calls for a full independent inquiry had been blocked until now because of Megrahi’s conviction in 2001.
“The answer has always been we don’t need an independent inquiry, we have had a trial, we have had appeals and we know what happened – one person has been convicted,” he said.
“If that conviction is overturned, then both the UK and the Scottish Government are going to have to come up with a different excuse for not holding a full inquiry into Lockerbie.”
The Scottish Criminal Cases Review Commission (SCCRC) has referred the case to the High Court, ruling the review of Megrahi’s conviction met two statutory tests for referral – that it may have been a miscarriage of justice and that it is in the interests of justice to refer it back to the court.
The case had been previously referred by the SCCRC to the appeal court back in 2007, but Megrahi abandoned the appeal two years later. A new review of his case was subsequently allowed posthumously after the SCCRC ruled he had dropped the appeal in the belief it would allow him to return to his native Libya, following a diagnosis of terminal cancer.
Megrahi flew home in 2009 after controversially being released from Greenock prison in 2009 on compassionate grounds. He had served eight years of a life sentence.
Black said the appeal ruling by the SCCRC in 2007 had made a “very strong finding” that no “reasonable court” on the evidence led at the trial could have accepted Megrahi was the purchaser of clothes that surrounded the bomb.
He said: “Now the current SCCRC goes even further than that – it now says that the commission believes a miscarriage of justice may have occurred because no reasonable trial court, relying on the evidence led at trial, could have held the case against Mr Megrahi was proved beyond reasonable doubt.
“The composition of the SCCRC has entirely changed between 2007 and 2020, so it is not the same people reaching the same decision again.
“This is two independent expert committees both saying no reasonable trial court could or should have convicted Megrahi.
“You can’t get a much more damning assessment of the trial court’s performance than that.”
Black said it was expected the appeal could proceed quickly and the verdict may even be known this year before the anniversary of the disaster on December 21. He said there was no reason for the Crown to use “delaying tactics” now that Megrahi was dead. (...)
Following the announcement of the permission for an appeal on Wednesday, lawyer Aamer Anwar issued a statement from Megrahi’s son Ali which said the family “finally hope our father’s name will be cleared”.
Others who believe Megrahi was innocent have also welcomed the decision, including Dr Jim Swire, the father of 23-year-old Flora Swire, who died in the disaster.
He said: “All we have ever wanted is a fair court where the evidence can be assessed.
“If the appeal runs through, there is not a snowball’s chance in hell the conviction will stand.”
The Justice For Megrahi group – of which Black is a member – said it would give some hope that the “stain that has lingered over the Scottish justice system for so many years will finally be obliterated.
However the news of potential fresh appeal has not been universally welcomed, with David Mundell, Tory MP for Dumfriesshire, Clydesdale and Tweeddale, saying many in the Lockerbie community who wished to draw a line under the tragedy were disappointed.
Black, who was one of the architects of the Camp Zeist court in The Hague where Megrahi’s trial tool place, said truth is “more important than feeling of comfort”.
“If closure is based on something completely false, then what is your closure worth?” he said.
“My motivation is my belief the Scottish criminal justice system got Lockerbie disastrously wrong. I am a lawyer, I have practised the law of Scotland, I have taught the law of Scotland. If my legal system, the one I have devoted my life to, has made a disastrous mistake, I want that mistake to be acknowledged and to be rectified.”
He said he did not want to be “overly optimistic” in predicting whether Megrahi’s conviction would be deemed as wrongful if the appeal goes ahead.
He added: “If the verdict is overturned, you have to face it – this is an embarrassment.
“This would be the court in 2020 saying our very distinguished and senior colleagues in 2001 at the trial at Camp Zeist got it wrong.
“That is an uncomfortable thing to say – but I hope their lordships will have the courage to say it.”
[RB: In the same newspaper there is an article on the case by Andrew Tickell, headlined The Lockerbie trial may yet embarrass the Scottish legal system, strongly supporting the SCCRC's decision to refer the case back to the High Court for a fresh appeal. Here are two sentences from it:]
Last week, the commission concluded that “no reasonable trial court could have accepted that Mr Megrahi was identified as the purchaser”. I find it difficult to disagree with them.
The eyes of the world are understandably elsewhere this week, but make no mistake – the new Lockerbie appeal is a case of global significance, with huge potential to embarrass the Scottish criminal justice system and generate a transatlantic political storm.
[RB: In today's edition of The Observer an article by Kenan Malik headlined Will we finally discover the truth about Lockerbie? contains the following:]
The case against Megrahi was circumstantial and dubious. Jim Swire, whose daughter Flora was killed on Flight 103, has devoted his life to unearthing the truth about the bombing, and has long campaigned to prove Megrahi’s innocence. So has Robert Black, one of Scotland’s leading jurists, and the man who came up with the idea of a special trial in the Netherlands.
Many, including apparently the CIA, have suggested that the evidence pointed to Iranian, not Libyan involvement, possibly through a radical Palestinian cell.
Given the horror of the bombing, most people have been happy that someone was convicted, and not worried about the details. But, as Swire and Black bravely attest, truth and justice matter, even, perhaps especially, in a case as terrible as Lockerbie. The appeal may finally throw some light on both.
The lawyer who was the architect of the Lockerbie trial believes the overturning of the conviction of Abdelbaset al-Megrahi would renew pressure for a full inquiry into the disaster.
Last week the family of Megrahi, who died in 2012, was granted permission to appeal his conviction. (...)
Professor Robert Black QC, below, who believes there was a miscarriage of justice, said calls for a full independent inquiry had been blocked until now because of Megrahi’s conviction in 2001.
“The answer has always been we don’t need an independent inquiry, we have had a trial, we have had appeals and we know what happened – one person has been convicted,” he said.
“If that conviction is overturned, then both the UK and the Scottish Government are going to have to come up with a different excuse for not holding a full inquiry into Lockerbie.”
The Scottish Criminal Cases Review Commission (SCCRC) has referred the case to the High Court, ruling the review of Megrahi’s conviction met two statutory tests for referral – that it may have been a miscarriage of justice and that it is in the interests of justice to refer it back to the court.
The case had been previously referred by the SCCRC to the appeal court back in 2007, but Megrahi abandoned the appeal two years later. A new review of his case was subsequently allowed posthumously after the SCCRC ruled he had dropped the appeal in the belief it would allow him to return to his native Libya, following a diagnosis of terminal cancer.
Megrahi flew home in 2009 after controversially being released from Greenock prison in 2009 on compassionate grounds. He had served eight years of a life sentence.
Black said the appeal ruling by the SCCRC in 2007 had made a “very strong finding” that no “reasonable court” on the evidence led at the trial could have accepted Megrahi was the purchaser of clothes that surrounded the bomb.
He said: “Now the current SCCRC goes even further than that – it now says that the commission believes a miscarriage of justice may have occurred because no reasonable trial court, relying on the evidence led at trial, could have held the case against Mr Megrahi was proved beyond reasonable doubt.
“The composition of the SCCRC has entirely changed between 2007 and 2020, so it is not the same people reaching the same decision again.
“This is two independent expert committees both saying no reasonable trial court could or should have convicted Megrahi.
“You can’t get a much more damning assessment of the trial court’s performance than that.”
Black said it was expected the appeal could proceed quickly and the verdict may even be known this year before the anniversary of the disaster on December 21. He said there was no reason for the Crown to use “delaying tactics” now that Megrahi was dead. (...)
Following the announcement of the permission for an appeal on Wednesday, lawyer Aamer Anwar issued a statement from Megrahi’s son Ali which said the family “finally hope our father’s name will be cleared”.
Others who believe Megrahi was innocent have also welcomed the decision, including Dr Jim Swire, the father of 23-year-old Flora Swire, who died in the disaster.
He said: “All we have ever wanted is a fair court where the evidence can be assessed.
“If the appeal runs through, there is not a snowball’s chance in hell the conviction will stand.”
The Justice For Megrahi group – of which Black is a member – said it would give some hope that the “stain that has lingered over the Scottish justice system for so many years will finally be obliterated.
However the news of potential fresh appeal has not been universally welcomed, with David Mundell, Tory MP for Dumfriesshire, Clydesdale and Tweeddale, saying many in the Lockerbie community who wished to draw a line under the tragedy were disappointed.
Black, who was one of the architects of the Camp Zeist court in The Hague where Megrahi’s trial tool place, said truth is “more important than feeling of comfort”.
“If closure is based on something completely false, then what is your closure worth?” he said.
“My motivation is my belief the Scottish criminal justice system got Lockerbie disastrously wrong. I am a lawyer, I have practised the law of Scotland, I have taught the law of Scotland. If my legal system, the one I have devoted my life to, has made a disastrous mistake, I want that mistake to be acknowledged and to be rectified.”
He said he did not want to be “overly optimistic” in predicting whether Megrahi’s conviction would be deemed as wrongful if the appeal goes ahead.
He added: “If the verdict is overturned, you have to face it – this is an embarrassment.
“This would be the court in 2020 saying our very distinguished and senior colleagues in 2001 at the trial at Camp Zeist got it wrong.
“That is an uncomfortable thing to say – but I hope their lordships will have the courage to say it.”
[RB: In the same newspaper there is an article on the case by Andrew Tickell, headlined The Lockerbie trial may yet embarrass the Scottish legal system, strongly supporting the SCCRC's decision to refer the case back to the High Court for a fresh appeal. Here are two sentences from it:]
Last week, the commission concluded that “no reasonable trial court could have accepted that Mr Megrahi was identified as the purchaser”. I find it difficult to disagree with them.
The eyes of the world are understandably elsewhere this week, but make no mistake – the new Lockerbie appeal is a case of global significance, with huge potential to embarrass the Scottish criminal justice system and generate a transatlantic political storm.
[RB: In today's edition of The Observer an article by Kenan Malik headlined Will we finally discover the truth about Lockerbie? contains the following:]
The case against Megrahi was circumstantial and dubious. Jim Swire, whose daughter Flora was killed on Flight 103, has devoted his life to unearthing the truth about the bombing, and has long campaigned to prove Megrahi’s innocence. So has Robert Black, one of Scotland’s leading jurists, and the man who came up with the idea of a special trial in the Netherlands.
Many, including apparently the CIA, have suggested that the evidence pointed to Iranian, not Libyan involvement, possibly through a radical Palestinian cell.
Given the horror of the bombing, most people have been happy that someone was convicted, and not worried about the details. But, as Swire and Black bravely attest, truth and justice matter, even, perhaps especially, in a case as terrible as Lockerbie. The appeal may finally throw some light on both.
Thursday 12 March 2020
Only a full court hearing will lead us to the truth on Lockerbie
[This is the headline over an article by Dr Jim Swire in today's edition of The Times. It reads as follows:]
I am not a campaigning kind of guy by nature, nor a leader. What brought that out in me, and has led me to fight for justice for all these years, was a deep-seated anger. What caused that was my access to a warning that the British government had received in October 1988, two months before the bombing. It was from the West German authorities and said that they had detected a Syrian-based terrorist group constructing fully automatic bombs that were to be used against aircraft.
It said the bombs were designed to explode about 30 minutes after the plane had left the tarmac. A few weeks later, I got hold of a telex from the Department of Transport to Heathrow dated early December 1988. Addressed to security personnel, it said “where searchers cannot satisfy him or herself as to whether an image seen on [an] x-ray machine is satisfactory or not, it should be put in the aircraft hold”.
That took my breath away and left me furious. It led to the death of my daughter Flora, the day before her 24th birthday, and 269 others. I felt the loss of Flora’s life could not be left to be manipulated and lied about.
My hope now is what it has always been: that we get a fair playing field of a court and the circumstances of the disaster are fully examined. If that happens my belief is that the guilty verdict will be overturned and a new inquiry will have to find out why the earlier one went so wrong.
It is time for the truth. We deserve nothing less. I only hope I will remain on this planet long enough to see justice, finally, be done.
[RB: Regrettably, the SCCRC's decision to refer the Megrahi conviction back to the appeal court will not lead to the circumstances of the disaster being fully examined. The new appeal will be limited to the grounds accepted by the Commission, unless Megrahi's lawyers succeed in persuading the court to add additional items to the grounds of appeal, something that I anticipate the appeal court will be in the highest degree unlikely to accede to.
In a comment in today's edition of The Times Magnus Linklater writes that the Commission found "that the original trial reached the right verdict given the evidence available". This is wholly and utterly wrong. Here is what the SCCRC actually said:]
the Commission believes that ... a miscarriage of justice may have occurred because no reasonable trial court, relying on the evidence led at trial, could have held the case against Mr Megrahi was proved beyond reasonable doubt.
[It could hardly be clearer that the SCCRC is saying that, on the evidence led at Camp Zeist, the court reached the wrong verdict, indeed one that no reasonable court could have reached.]
I am not a campaigning kind of guy by nature, nor a leader. What brought that out in me, and has led me to fight for justice for all these years, was a deep-seated anger. What caused that was my access to a warning that the British government had received in October 1988, two months before the bombing. It was from the West German authorities and said that they had detected a Syrian-based terrorist group constructing fully automatic bombs that were to be used against aircraft.
It said the bombs were designed to explode about 30 minutes after the plane had left the tarmac. A few weeks later, I got hold of a telex from the Department of Transport to Heathrow dated early December 1988. Addressed to security personnel, it said “where searchers cannot satisfy him or herself as to whether an image seen on [an] x-ray machine is satisfactory or not, it should be put in the aircraft hold”.
That took my breath away and left me furious. It led to the death of my daughter Flora, the day before her 24th birthday, and 269 others. I felt the loss of Flora’s life could not be left to be manipulated and lied about.
My hope now is what it has always been: that we get a fair playing field of a court and the circumstances of the disaster are fully examined. If that happens my belief is that the guilty verdict will be overturned and a new inquiry will have to find out why the earlier one went so wrong.
It is time for the truth. We deserve nothing less. I only hope I will remain on this planet long enough to see justice, finally, be done.
[RB: Regrettably, the SCCRC's decision to refer the Megrahi conviction back to the appeal court will not lead to the circumstances of the disaster being fully examined. The new appeal will be limited to the grounds accepted by the Commission, unless Megrahi's lawyers succeed in persuading the court to add additional items to the grounds of appeal, something that I anticipate the appeal court will be in the highest degree unlikely to accede to.
In a comment in today's edition of The Times Magnus Linklater writes that the Commission found "that the original trial reached the right verdict given the evidence available". This is wholly and utterly wrong. Here is what the SCCRC actually said:]
the Commission believes that ... a miscarriage of justice may have occurred because no reasonable trial court, relying on the evidence led at trial, could have held the case against Mr Megrahi was proved beyond reasonable doubt.
[It could hardly be clearer that the SCCRC is saying that, on the evidence led at Camp Zeist, the court reached the wrong verdict, indeed one that no reasonable court could have reached.]
Wednesday 11 March 2020
Finally my family has hope that our father’s name will be cleared
[What follows is a statement issued today by Aamer Anwar, solicitor for the Megrahi family members on whose behalf the application to the Scottish Criminal Cases Review Commission was made:]
On the 21st December 1988, 270 people from 21 countries were murdered in the bombing of Pan Am Flight 103 over Lockerbie, the worst terrorist atrocity ever committed in the United Kingdom.
Since then the case of Abdelbasset Al-Megrahi the only man ever convicted of the crime has been described as the worst miscarriage of justice in British legal history.
[An] appeal was commenced in 2007 but following the diagnosis of terminal cancer it was suddenly abandoned in 2009.
A reversal of the verdict would have meant that the governments of the United States and the United Kingdom stand exposed as having lived a monumental lie for 31 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit.
In June 2014 we lodged an application with the Commission (SCCRC) seeking to overturn the conviction of Abdelbaset Ali Mohmed al-Megrahi for murder. The application was submitted on behalf of the Immediate family members of the late Mr Al-Megrahi along with Dr Jim Swire, Reverend John F Mosey and 22 other British relatives of passengers who died on board Pan Am Flight 103.
The Appeal Court in a judgment in July 2015, ruled that the relatives of Lockerbie bombing victims would not be allowed to pursue an appeal on behalf of the only man convicted of the crime. The families did not give up and in July 2017 a further application was lodged with the Commission on behalf of the Al-Megrahi family.
For those who believe there is a time limit on justice I would like to quote Dr Jim Swire who I spoke to this morning after advising him of the decision.
Dr Swire, father of Flora Swire who, one day before her 24th birthday, was brutally murdered said:-
“It has always been and remains my intent to see those responsible for her death brought to justice. I still ache for her, what might have been, the grandchildren she would have had, the love she always gave us and the glowing medical career. For me this case is about two families, mine and Abdelbasset’s, but behind them now are seen to lie the needs of 25 other families in applying for a further appeal 31 years after the event itself- We need the truth.”
I pay tribute to the compassion, courage and perseverance of Dr. Swire, Rev Mosey, the many British relatives of victims and of course to the family of Mr. Al-Megrahi who lost a father, husband and son and describe him as the 271st victim.
I am grateful to our legal team, in particular Clair Mitchell QC and Gordon Jackson QC for their support and tireless efforts, as well as Robert Black QC.
We are grateful to the staff of the Scottish Criminal Cases Review Commission for their exceptional hard work that has taken place over several years as a result of our application.
I can advise that this morning at 11am the Commission delivered to my office the full statement of reasons totaling 451 pages. I quote from their letter:
“The Scottish Criminal Cases Review Commission has decided that Mr. Megrahi’s case should be referred to the High Court for the determination. The Commission believes that there may have been a miscarriage of justice in relation to the conviction, and that it is in the interests of justice to refer the case to the High Court.”
We had identified six grounds for referring the case to the Appeal Court.
The Commission have gone on to deliver a damning indictment of the process and believe that a miscarriage of justice may have occurred by reason of an ‘Unreasonable Verdict’ and the ground of ‘Non-Disclosure’. These grounds incorporate many of the issues we had identified in our application.
Unreasonable verdict
S106(3)(b) of the 1995 Act allows an appeal on the basis that a conviction was based upon a verdict that no reasonable jury, properly directed, could have returned. Despite the fact there was no jury here, that ground of appeal remains open to Mr Al Megrahi.
This ground relates to the Court’s finding that Mr Al Megrahi was the purchaser of items that were located within the suitcase which housed the bomb which destroyed Flight 103. Said items having been bought in a shop in Malta owned by Mr Tony Gauci.
The Commission have agreed with our submission that the Court could not reasonably find that Mr Megrahi was the purchaser of the items on the basis of the evidence which was before them. This finding was central to the Crown case against Mr Al Megrahi as absent that finding that linked Mr Al Megrahi to the items within the bomb suitcase, there would have been insufficient evidence to allow the Court to convict.
Mr Gauci’s statements and his evidence on identification were inconsistent. The positive identifications of Mr Al Megrahi which he made were qualified in some instances and made in circumstances hugely prejudicial to Mr Al Megrahi in others. His evidence regarding the date of the purchase of the items from his store was perhaps even more incredible and could – and should – not have been accepted as credible or reliable.
The Commission have concluded that no reasonable Court could have accepted the evidence that Mr Megrahi was identified as the purchaser of the items from Gauci’s shop. That being the case, no reasonable Court could have convicted him.
Non-Disclosure
We submitted serious allegations of the failure of the Crown to disclose evidence which could have been key to the defence and interfered with the right to a fair trial.
The Crown failed in its duty of disclosure of relevant material to Mr Al Megrahi’s defence team prior to trial. This prejudiced the defence in their preparation and conduct of the trial to such an extent that the Commission have concluded that this may have given rise to a miscarriage of justice.
The Commission conclude that there should have been disclosure to the defence regarding:
*Information contained in the precognition statement provided by Mr Gauci to the Crown.
*A statement given by Sergeant Bussutil and a confidential police report regarding Mr Gauci’s exposure to photographs in a magazine prior to attending an identification parade.
*Reward monies paid to Mr Gauci and his brother. Documents have claimed that Scottish police officers and FBI agents had discussed as early as September 1989 an offer of unlimited money to the Maltese shop keeper Tony Gauci.
We submit that it is unacceptable to offer bribes, inducements or rewards to any witness in a routine murder trial in Glasgow then it should have been unacceptable to have done it in the biggest case of mass murder ever carried out in Europe. Various reports have claimed that Tony Gauci received more than $2m in reward-money.
The Commission conclude that, when applying the Article 6 test regarding a fair trial under the ECHR, the failure by the Crown to disclose information regarding the photographs which had been viewed by Mr Gauci and the information on reward monies paid to the Gauci’s, that a miscarriage of justice may have occurred.
INTERESTS OF JUSTICE
The Commission was asked to address the issue of whether it is in the interests of justice to refer the case to the High Court for a further appeal. [An] appeal was commenced in 2007 but following the diagnosis of terminal cancer it was suddenly abandoned in 2009. Ordinarily this would be a bar to a further appeal being raised.
The application we lodged dealt with the circumstances that lead to Mr Megrahi abandoning his appeal.
The Commission concluded that Mr Al-Megrahi abandoned his appeal in the genuine and reasonable belief that the Scottish Government had exerted pressure upon him to do so, to allow them to release him on compassionate grounds.
Consent to disclose Information
We are disappointed that various redactions appear in the statement of reasons because the Scottish Government, the UK Government, the Federal Republic of Germany and the United States Government have refused consent to disclose matters which at this time reman redacted.
We must now insist that the Lord Advocate abide by his duty to make full disclosure.
In conclusion the reputation of the Scottish criminal justice system has suffered badly both at home and internationally because of widespread doubts about the conviction of Mr Al-Megrahi.
Mr Al- Megrahi was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.
Within 21 days we must lodge a note of appeal with the High Court.
There is finally hope on what has been a long journey for the truth, but there can never be a time limit on justice.
I conclude with the words of Ali-Al-Megrahi (the son)
“Finally my family has hope that our father’s name will be cleared, I am grateful to all those who have supported my family in their long struggle for justice.”
The Criminal Procedure (Scotland) Act 1995 states that where the Commission make a reference to the High Court they —
Give to the Court a statement of their reasons for making the reference; and
Send a copy of the statement to every person who appears to them to be likely to be a party to any proceedings on the appeal arising from the reference.
The grounds for an appeal arising from a reference to the High Court under section 194B of this Act must relate to one or more of the reasons for making the reference contained in the Commission's statement of reasons.
What happens next is that we assess the document and put in our note of appeal one or more of the reasons for making the reference. We are not bound to put forward all of them – we are also not inhibited from adding more but “the High Court may, if it considers it is in the interests of justice to do so, grant leave for the appellant to found the appeal on additional grounds.”
An application by the appellant for leave to appeal must be made and intimated to the Crown Agent within 21 days after the date on which a copy of the Commission's statement of reasons is sent under subsection (4)(b).
(4D)The High Court may, on cause shown, extend the period of 21 days mentioned in subsection (4C).
The Appeal Court used to have the power to reject a reference but the law on that was changed in 2017.
First we have to assess the grounds of appeal that the Commission want to put forward – they have of course had since June 2014 and then July 2017 and a whole host of staff and resources to consider this. Our team will have to consider what we have been given and draft the note of appeal against conviction and have it lodged.
It is highly likely that there will be requests for extensions of the time required to conduct a thorough review of the SCCRC decision and to prepare the note of appeal. Following that, there will be a number of procedural hearings, before the final appeal hearing.
We will also today write to the Lord Advocate advising him of his duty of disclosure and disclose all information
Mr Megrahi was convicted on the 31st January 2001 of the charge of murder following trial at the High Court of Justiciary sitting at Kamp van Zeist in the Netherlands. His co-accused Al-amin Khalifa Fimah was acquitted following trial. Mr Megrahi was sentenced to life imprisonment with a minimum term of 27 years.
Appeal
Abdelbaset al-Megrahi’s first appeal was dismissed on the 14th March 2002.
The next appeal was mounted in consequence of the Scottish Criminal Case Review Commission’s reference dated 28 June 2007.
Grounds of Appeal 1 and 2 were argued before the Court in full at a public hearing which took place between 28 April and 19 May 2009. On 7th July 2009 the Court indicated that one of its numbers, Lord Wheatley, had been hospitalised. It continued consideration of the grounds of appeal.
On 18th August 2009 Mr Megrahi with leave of the court, abandoned his appeal. No judgement or opinion has therefore been handed down by the Court upon these submissions.
Pan Am flight 103 (“PA103”)
1.5 At 7.03pm on Wednesday 21 December 1988, shortly after taking off from Heathrow airport, PA103 was flying at an altitude of 31,000 feet en route to John F Kennedy airport, New York, when an explosion caused the aircraft to disintegrate and fall out of the sky. 243 passengers and 16 crew on board were killed. The victims came from 21 countries, the vast majority being from the United States.
1.6 The resulting debris was spread over a very wide area in Scotland and the North of England, but principally it landed in and around the town of Lockerbie causing the deaths of a further 11 people. In all 270 people were killed in the disaster.
1.7 A massive police operation was mounted to recover the bodies of the victims and as much of the debris as possible. The local police force, Dumfries and Galloway Constabulary (“D&G”), was assisted in the search operation by numerous officers from other forces in Scotland and England, as well as by military personnel and members of voluntary organisations.
Fatal Accident Inquiry
1.8 On 1 October 1990 a fatal accident inquiry was conducted by Sheriff Principal John Mowat QC. In his findings in fact, Sheriff Principal Mowat found that a Samsonite suitcase (“the primary suitcase”) containing a Toshiba radio cassette recorder loaded with a Semtex-type plastic explosive had been placed on board Pan Am flight 103A (“PA103A”) from Frankfurt to London Heathrow before being transferred to PA103; that the suitcase had probably arrived at Frankfurt on another airline and been transferred to PA103A without being identified as an unaccompanied bag; that the baggage had not been reconciled with passengers travelling on PA103, nor had it been x-rayed at Heathrow; and that the cause of all the deaths was the detonation of the explosive device in luggage container AVE 4041 which had been situated on the left side of the forward hold of the aircraft.
1.9 Sheriff Principal Mowat concluded that the primary cause of the deaths was a criminal act of murder.
The police investigation
1.10 It had been concluded very soon after the disaster that the likely cause had been the detonation of an improvised explosive device. From the date of the explosion and throughout the course of 1989-1991, an extensive international police investigation was carried out, principally involving the British and American investigating authorities, but also including the police forces of the former Federal Republic of Germany (“the BKA”) and of Malta.
1.11 Initially, suspicion fell upon Palestinian terrorist groups, in particular the Popular Front for the Liberation of Palestine – General Command (“PFLP-GC”). However, in 1990 developments in the investigation turned its focus to Libya, and on 13 November 1991 a warrant was granted by a sheriff at Dumfries for the arrest of the applicant and Al Amin Khalifa Fhimah (“the co-accused”), both Libyan nationals. On the following day the Lord Advocate issued an indictment setting out the charges against the two accused. Simultaneously, as a result of a federal grand jury investigation, the US Attorney General published an indictment in substantially similar terms to that issued by the Scottish authorities.
1.12 Following publication of the indictments, the UK and the US sought the handover of the two accused for trial, and throughout 1992 and 1993 the UN Security Council issued a number of resolutions calling upon Libya to do so. It also imposed extensive economic sanctions against that country. Libya denied any involvement in the crime.
Proposals for trial in the Netherlands
1.13 In 1998 the governments of the UK and the US wrote to the Secretary General of the UN indicating that they were prepared to arrange a trial of the two accused before a Scottish court sitting in the Netherlands. The trial, it was proposed, would follow Scots law and procedure in every respect except that the jury would be replaced by a panel of three judges. Following Libya’s consent to the initiative, an agreement was entered into between the UK and the Netherlands to put it into effect. On the same date, the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 came into force in the UK, regulating such matters as the constitution of the trial and appeal courts.
1.14 Lords Sutherland, Coulsfield and MacLean were appointed to form the panel of judges. Lord Abernethy was appointed as an additional judge to assume the functions of any member of the panel who died during the proceedings or was absent for a prolonged period. He was not required to carry out that function. The location of the court was chosen as Kamp van Zeist in the Netherlands.
1.15 On 5 April 1999, the applicant and the co-accused travelled to the Netherlands where they were arrested by Scottish police officers. On 14 April 1999 they were fully committed for trial, and were detained at premises within the court precincts. The indictment was served upon them on 29 October 1999.
The trial
1.16 Preliminary pleas to the competency and relevancy of the charges were raised by both accused and argued on their behalf by counsel at a hearing on 7 December 1999. On 8 December, Lord Sutherland, sitting alone, held the charges to be both competent and relevant (see HMA v Al Megrahi (No 1) 2000 SCCR 177). Leave to appeal the decision was granted but no appeal was taken.
1.17 The trial commenced on 3 May 2000, and the cases for both accused closed on 8 January 2001. Neither the applicant nor the co-accused gave evidence. Following submissions by the parties on 18 January 2001 the diet was adjourned to allow the judges to deliberate upon their verdicts.
1.18 There were originally three alternative charges libelled on the indictment: (1) conspiracy to murder; (2) murder and (3) contravention of sections 2(1) and 5 of the Aviation Security Act 1982. However, on 10 January 2001, the advocate depute’s motion to delete charges (1) and (3), and to amend charge (2), was granted by the court. Consequently, by the end of the trial both accused faced only a single charge of murder in the following terms:
“(2) You ABDELBASET ALI MOHMED AL MEGRAHI being a member of the Libyan Intelligence Services and in particular being the head of security of Libyan Arab Airlines and thereafter Director of the Centre for Strategic Studies, Tripoli, Libya and you AL AMIN KHALIFA FHIMAH being the Station Manager and formerly the Station Manager of Libyan Arab Airlines in Malta and having, while acting in concert with others, formed a criminal purpose to destroy a civil passenger aircraft and murder the occupants in furtherance of the purposes of the said Libyan Intelligence Services and having between 1 January 1985 and 21 December 1988, both dates inclusive, within the offices of Libyan Arab Airlines at Luqa Airport, Malta and elsewhere in Malta in your possession and under your control quantities of high performance plastic explosive and airline luggage tags, while acting in concert together and with others [sub-paragraph (a) was deleted on the motion of the advocate depute]
(b) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did between 20 November and 20 December 1988, both dates inclusive, at the premises occupied by the firm of MEBO AG at the Novapark Hotel, Zurich Switzerland, at the premises occupied by you ABDELBASET ALI MOHMED AL MEGRAHI and by the said Libyan Intelligence Services, in Tripoli aforesaid, and elsewhere in Switzerland and Libya, through the hands of Ezzadin Hinshiri and Badri Hassan both also members of the Libyan Intelligence Services, order and attempt to obtain delivery from the said firm of MEBO AG of forty timers capable of detonating explosive devices and of a type previously supplied by the said firm of MEGO AG to member of the Libyan Intelligence Services;
(c) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did between 1 and 21 December 1988, both dates inclusive, at Luqa Airport, Malta without authority remove therefrom airline luggage tags;
(d) you ABDELBASET ALI MOHMED AL MEGRAHI did on 7 December 1988 in the shop premises known as Mary’s House at Tower Road, Sliema, Malta purchase a quantity of clothing and an umbrella;
(e) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did on 20 December 1988 at Luqa Airport, Malta enter Malta while you ABDELBASET ALI MOHMED AL MEGRAHI were using a passport in the false name of Ahmed Khalifa Abdusamad and you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did there and then cause a suitcase to be introduced to Malta;
(f) you ABDELBASET ALI MOHMED AL MEGRAHI did on 20 and 21 December 1988 reside at the Holiday Inn Tigne Street, Sliema, aforesaid under the false identity of Ahmed Khalifa Abdusamad;
(g) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did on 21 December 1988 at Luqa Airport, aforesaid place or cause to be placed on board an aircraft of Air Malta flight KM180 to Frankfurt am Main Airport, Federal Republic of Germany said suitcase, or a similar suitcase, containing said clothing and umbrella and an improvised explosive device containing high performance plastic explosive concealed within a Toshiba RT SF 16 “Bombeat” radio cassette recorder and programmed to be detonated by one of said electronic timers, having tagged or caused such suitcase to be tagged so as to be carried by aircraft from Frankfurt am Main Airport aforesaid via London, Heathrow Airport to New York, John F Kennedy Airport, United States of America; and
(h) you ABDELBASET ALI MOHMED AL MEGRAHI did on 21 December 1988 depart from Malta and travel from there to Tripoli, Libya using a passport in the false name of Ahmed Khalifa Abdusamad, while travelling with said Mohammed Abouagela Masud also a member of the Libyan Intelligence Services; and such suitcase was thus carried to Frankfurt am Main Airport aforesaid and there placed on board an aircraft of Pan American World Airways flight PA103 and carried to London, Heathrow Airport aforesaid and there, in turn, placed on board an aircraft of Pan American World Airways flight PA103 to New York, John F Kennedy Airport aforesaid; and said improvised explosive device detonated and exploded on board said aircraft flight PA103 while in flight near to Lockerbie, Scotland whereby the aircraft was destroyed and the wreckage crashed to the ground and the 259 passengers and crew named in Schedule 1 hereof and the 11 residents of Lockerbie aforesaid named in Schedule 2 hereof were killed and you did murder them; and it will be shown that between 1 January 1985 and 21 December 1988, both dates inclusive, in Tripoli, Libya, at Dakar Airport, Senegal, in Malta and elsewhere the said Libyan Intelligence Services were in possession of said electronic timers, quantities of high performance plastic explosive, detonators and other components of improvised explosive devices and Toshiba RT SF 16 “Bombeat” radio cassette recorders, all for issue to and use by their members, including Mohammed El Marzouk and Mansour Omran Ammar Saber.”
1.19 The court returned its verdict on 31 January 2001. It unanimously found the co-accused not guilty. The verdict in relation to the applicant was recorded in the minutes of trial in the following terms (see also the transcript of proceedings on day 86 of the trial):
“The Court Unanimously found the Accused Abdelbaset Ali Mohmed Al Megrahi GUILTY on the Second Alternative Charge but that under deletion of the words ‘and you Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifah [sic] Fhimah did there and then cause a suitcase to be introduced to Malta’ in lines 4 to 6 of subhead (e) of said charge and under deletion of the words ‘said suitcase, or’ in line 4 of subhead (g) and under deletion of the word ‘similar’ in line [4] of said subhead (g)”.
1.20 The court sentenced the applicant to life imprisonment, backdated to 5 April 1999, and recommended that he serve a minimum period of 20 years before he could be considered for release on licence.
Post-trial developments
Appeal
1.21 The applicant lodged grounds of appeal against conviction on 11 June 2001 and leave to appeal was granted on 23 August 2001. The proceedings took place at Kamp van Zeist between 23 January and 14 February 2002, and the opinion of the court, rejecting the appeal, was issued on 14 March 2002.
Application to the European Court of Human Rights
1.22 On 12 September 2002 the applicant’s defence team lodged an application (number 33955/02) with the European Court of Human Rights in which they argued that the applicant’s right to a fair trial had been infringed by, inter alia, prejudicial pre-trial publicity. On 11 February 2003 the court ruled the application inadmissible on the basis that the applicant had failed to exhaust domestic remedies by raising these issues in the domestic forum.
Diplomatic developments
1.23 On 15 August 2003, Libya delivered a letter regarding the Lockerbie bombing to a meeting of the UN Security Council. The letter contained the following passages:
“… the remaining issues relating to fulfilment of all Security Council resolutions
resulting from the Lockerbie incident have been resolved…
… Libya as a sovereign state:
••• Has facilitated the bringing to justice of the two suspects charged with the
bombing of Pan AM 103, and accepts responsibility for the actions of its
officials;
••• Has cooperated with the Scottish investigating authorities before and during
the trial and pledges to cooperate in good faith with any further requests for
information in connection with the Pan Am 103 investigation. Such
cooperation would be extended in good faith through the usual channels;
••• Has arranged for the payment of appropriate compensation…”
1.24 On 12 September 2003, the UN passed a resolution lifting all UN sanctions
against Libya.
“Punishment part” hearing
1.25 At a hearing at the High Court in Glasgow on 24 November 2003 under the Convention Rights (Compliance) (Scotland) Act 2001, the punishment part of the applicant’s sentence was set at 27 years, again backdated to 5 April 1999. On 18 December 2003 the Lord Advocate appealed against the sentence as being unduly lenient.
For further background please refer to:-
http://www.bbc.co.uk/news/uk-scotland-scotland-politics-25465662
http://www.heraldscotland.com/news/home-news/lockerbie-exclusive-we-publish-the-report-that-could-have-cleared-megrahi.2012036248
http://www.sccrc.org.uk/ViewFile.aspx?id=612
http://lockerbiecase.blogspot.co.uk/2012/03/today-sunday-herald-publishes-behind.html
http://www.bbc.co.uk/news/uk-scotland-scotland-politics-25465662
https://www.bbc.co.uk/news/uk-scotland-south-scotland-43987079
http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/10688067/Lockerbie-bombing-was-work-of-Iran-not-Libya-says-former-spy.html
On the 21st December 1988, 270 people from 21 countries were murdered in the bombing of Pan Am Flight 103 over Lockerbie, the worst terrorist atrocity ever committed in the United Kingdom.
Since then the case of Abdelbasset Al-Megrahi the only man ever convicted of the crime has been described as the worst miscarriage of justice in British legal history.
[An] appeal was commenced in 2007 but following the diagnosis of terminal cancer it was suddenly abandoned in 2009.
A reversal of the verdict would have meant that the governments of the United States and the United Kingdom stand exposed as having lived a monumental lie for 31 years, imprisoning a man they knew to be innocent and punishing the Libyan people for a crime which they did not commit.
In June 2014 we lodged an application with the Commission (SCCRC) seeking to overturn the conviction of Abdelbaset Ali Mohmed al-Megrahi for murder. The application was submitted on behalf of the Immediate family members of the late Mr Al-Megrahi along with Dr Jim Swire, Reverend John F Mosey and 22 other British relatives of passengers who died on board Pan Am Flight 103.
The Appeal Court in a judgment in July 2015, ruled that the relatives of Lockerbie bombing victims would not be allowed to pursue an appeal on behalf of the only man convicted of the crime. The families did not give up and in July 2017 a further application was lodged with the Commission on behalf of the Al-Megrahi family.
For those who believe there is a time limit on justice I would like to quote Dr Jim Swire who I spoke to this morning after advising him of the decision.
Dr Swire, father of Flora Swire who, one day before her 24th birthday, was brutally murdered said:-
“It has always been and remains my intent to see those responsible for her death brought to justice. I still ache for her, what might have been, the grandchildren she would have had, the love she always gave us and the glowing medical career. For me this case is about two families, mine and Abdelbasset’s, but behind them now are seen to lie the needs of 25 other families in applying for a further appeal 31 years after the event itself- We need the truth.”
I pay tribute to the compassion, courage and perseverance of Dr. Swire, Rev Mosey, the many British relatives of victims and of course to the family of Mr. Al-Megrahi who lost a father, husband and son and describe him as the 271st victim.
I am grateful to our legal team, in particular Clair Mitchell QC and Gordon Jackson QC for their support and tireless efforts, as well as Robert Black QC.
We are grateful to the staff of the Scottish Criminal Cases Review Commission for their exceptional hard work that has taken place over several years as a result of our application.
I can advise that this morning at 11am the Commission delivered to my office the full statement of reasons totaling 451 pages. I quote from their letter:
“The Scottish Criminal Cases Review Commission has decided that Mr. Megrahi’s case should be referred to the High Court for the determination. The Commission believes that there may have been a miscarriage of justice in relation to the conviction, and that it is in the interests of justice to refer the case to the High Court.”
We had identified six grounds for referring the case to the Appeal Court.
The Commission have gone on to deliver a damning indictment of the process and believe that a miscarriage of justice may have occurred by reason of an ‘Unreasonable Verdict’ and the ground of ‘Non-Disclosure’. These grounds incorporate many of the issues we had identified in our application.
Unreasonable verdict
S106(3)(b) of the 1995 Act allows an appeal on the basis that a conviction was based upon a verdict that no reasonable jury, properly directed, could have returned. Despite the fact there was no jury here, that ground of appeal remains open to Mr Al Megrahi.
This ground relates to the Court’s finding that Mr Al Megrahi was the purchaser of items that were located within the suitcase which housed the bomb which destroyed Flight 103. Said items having been bought in a shop in Malta owned by Mr Tony Gauci.
The Commission have agreed with our submission that the Court could not reasonably find that Mr Megrahi was the purchaser of the items on the basis of the evidence which was before them. This finding was central to the Crown case against Mr Al Megrahi as absent that finding that linked Mr Al Megrahi to the items within the bomb suitcase, there would have been insufficient evidence to allow the Court to convict.
Mr Gauci’s statements and his evidence on identification were inconsistent. The positive identifications of Mr Al Megrahi which he made were qualified in some instances and made in circumstances hugely prejudicial to Mr Al Megrahi in others. His evidence regarding the date of the purchase of the items from his store was perhaps even more incredible and could – and should – not have been accepted as credible or reliable.
The Commission have concluded that no reasonable Court could have accepted the evidence that Mr Megrahi was identified as the purchaser of the items from Gauci’s shop. That being the case, no reasonable Court could have convicted him.
Non-Disclosure
We submitted serious allegations of the failure of the Crown to disclose evidence which could have been key to the defence and interfered with the right to a fair trial.
The Crown failed in its duty of disclosure of relevant material to Mr Al Megrahi’s defence team prior to trial. This prejudiced the defence in their preparation and conduct of the trial to such an extent that the Commission have concluded that this may have given rise to a miscarriage of justice.
The Commission conclude that there should have been disclosure to the defence regarding:
*Information contained in the precognition statement provided by Mr Gauci to the Crown.
*A statement given by Sergeant Bussutil and a confidential police report regarding Mr Gauci’s exposure to photographs in a magazine prior to attending an identification parade.
*Reward monies paid to Mr Gauci and his brother. Documents have claimed that Scottish police officers and FBI agents had discussed as early as September 1989 an offer of unlimited money to the Maltese shop keeper Tony Gauci.
We submit that it is unacceptable to offer bribes, inducements or rewards to any witness in a routine murder trial in Glasgow then it should have been unacceptable to have done it in the biggest case of mass murder ever carried out in Europe. Various reports have claimed that Tony Gauci received more than $2m in reward-money.
The Commission conclude that, when applying the Article 6 test regarding a fair trial under the ECHR, the failure by the Crown to disclose information regarding the photographs which had been viewed by Mr Gauci and the information on reward monies paid to the Gauci’s, that a miscarriage of justice may have occurred.
INTERESTS OF JUSTICE
The Commission was asked to address the issue of whether it is in the interests of justice to refer the case to the High Court for a further appeal. [An] appeal was commenced in 2007 but following the diagnosis of terminal cancer it was suddenly abandoned in 2009. Ordinarily this would be a bar to a further appeal being raised.
The application we lodged dealt with the circumstances that lead to Mr Megrahi abandoning his appeal.
The Commission concluded that Mr Al-Megrahi abandoned his appeal in the genuine and reasonable belief that the Scottish Government had exerted pressure upon him to do so, to allow them to release him on compassionate grounds.
Consent to disclose Information
We are disappointed that various redactions appear in the statement of reasons because the Scottish Government, the UK Government, the Federal Republic of Germany and the United States Government have refused consent to disclose matters which at this time reman redacted.
We must now insist that the Lord Advocate abide by his duty to make full disclosure.
In conclusion the reputation of the Scottish criminal justice system has suffered badly both at home and internationally because of widespread doubts about the conviction of Mr Al-Megrahi.
Mr Al- Megrahi was convicted in a Scottish court of law and that is the only appropriate place for his guilt or innocence to be determined.
Within 21 days we must lodge a note of appeal with the High Court.
There is finally hope on what has been a long journey for the truth, but there can never be a time limit on justice.
I conclude with the words of Ali-Al-Megrahi (the son)
“Finally my family has hope that our father’s name will be cleared, I am grateful to all those who have supported my family in their long struggle for justice.”
WHAT HAPPENS NEXT?
The Criminal Procedure (Scotland) Act 1995 states that where the Commission make a reference to the High Court they —
Give to the Court a statement of their reasons for making the reference; and
Send a copy of the statement to every person who appears to them to be likely to be a party to any proceedings on the appeal arising from the reference.
The grounds for an appeal arising from a reference to the High Court under section 194B of this Act must relate to one or more of the reasons for making the reference contained in the Commission's statement of reasons.
What happens next is that we assess the document and put in our note of appeal one or more of the reasons for making the reference. We are not bound to put forward all of them – we are also not inhibited from adding more but “the High Court may, if it considers it is in the interests of justice to do so, grant leave for the appellant to found the appeal on additional grounds.”
An application by the appellant for leave to appeal must be made and intimated to the Crown Agent within 21 days after the date on which a copy of the Commission's statement of reasons is sent under subsection (4)(b).
(4D)The High Court may, on cause shown, extend the period of 21 days mentioned in subsection (4C).
The Appeal Court used to have the power to reject a reference but the law on that was changed in 2017.
First we have to assess the grounds of appeal that the Commission want to put forward – they have of course had since June 2014 and then July 2017 and a whole host of staff and resources to consider this. Our team will have to consider what we have been given and draft the note of appeal against conviction and have it lodged.
It is highly likely that there will be requests for extensions of the time required to conduct a thorough review of the SCCRC decision and to prepare the note of appeal. Following that, there will be a number of procedural hearings, before the final appeal hearing.
We will also today write to the Lord Advocate advising him of his duty of disclosure and disclose all information
BACKGROUND TO THE CONVICTION AND SENTENCE
Mr Megrahi was convicted on the 31st January 2001 of the charge of murder following trial at the High Court of Justiciary sitting at Kamp van Zeist in the Netherlands. His co-accused Al-amin Khalifa Fimah was acquitted following trial. Mr Megrahi was sentenced to life imprisonment with a minimum term of 27 years.
Appeal
Abdelbaset al-Megrahi’s first appeal was dismissed on the 14th March 2002.
The next appeal was mounted in consequence of the Scottish Criminal Case Review Commission’s reference dated 28 June 2007.
Grounds of Appeal 1 and 2 were argued before the Court in full at a public hearing which took place between 28 April and 19 May 2009. On 7th July 2009 the Court indicated that one of its numbers, Lord Wheatley, had been hospitalised. It continued consideration of the grounds of appeal.
On 18th August 2009 Mr Megrahi with leave of the court, abandoned his appeal. No judgement or opinion has therefore been handed down by the Court upon these submissions.
BACKGROUND TO THE CONVICTION
Pan Am flight 103 (“PA103”)
1.5 At 7.03pm on Wednesday 21 December 1988, shortly after taking off from Heathrow airport, PA103 was flying at an altitude of 31,000 feet en route to John F Kennedy airport, New York, when an explosion caused the aircraft to disintegrate and fall out of the sky. 243 passengers and 16 crew on board were killed. The victims came from 21 countries, the vast majority being from the United States.
1.6 The resulting debris was spread over a very wide area in Scotland and the North of England, but principally it landed in and around the town of Lockerbie causing the deaths of a further 11 people. In all 270 people were killed in the disaster.
1.7 A massive police operation was mounted to recover the bodies of the victims and as much of the debris as possible. The local police force, Dumfries and Galloway Constabulary (“D&G”), was assisted in the search operation by numerous officers from other forces in Scotland and England, as well as by military personnel and members of voluntary organisations.
Fatal Accident Inquiry
1.8 On 1 October 1990 a fatal accident inquiry was conducted by Sheriff Principal John Mowat QC. In his findings in fact, Sheriff Principal Mowat found that a Samsonite suitcase (“the primary suitcase”) containing a Toshiba radio cassette recorder loaded with a Semtex-type plastic explosive had been placed on board Pan Am flight 103A (“PA103A”) from Frankfurt to London Heathrow before being transferred to PA103; that the suitcase had probably arrived at Frankfurt on another airline and been transferred to PA103A without being identified as an unaccompanied bag; that the baggage had not been reconciled with passengers travelling on PA103, nor had it been x-rayed at Heathrow; and that the cause of all the deaths was the detonation of the explosive device in luggage container AVE 4041 which had been situated on the left side of the forward hold of the aircraft.
1.9 Sheriff Principal Mowat concluded that the primary cause of the deaths was a criminal act of murder.
The police investigation
1.10 It had been concluded very soon after the disaster that the likely cause had been the detonation of an improvised explosive device. From the date of the explosion and throughout the course of 1989-1991, an extensive international police investigation was carried out, principally involving the British and American investigating authorities, but also including the police forces of the former Federal Republic of Germany (“the BKA”) and of Malta.
1.11 Initially, suspicion fell upon Palestinian terrorist groups, in particular the Popular Front for the Liberation of Palestine – General Command (“PFLP-GC”). However, in 1990 developments in the investigation turned its focus to Libya, and on 13 November 1991 a warrant was granted by a sheriff at Dumfries for the arrest of the applicant and Al Amin Khalifa Fhimah (“the co-accused”), both Libyan nationals. On the following day the Lord Advocate issued an indictment setting out the charges against the two accused. Simultaneously, as a result of a federal grand jury investigation, the US Attorney General published an indictment in substantially similar terms to that issued by the Scottish authorities.
1.12 Following publication of the indictments, the UK and the US sought the handover of the two accused for trial, and throughout 1992 and 1993 the UN Security Council issued a number of resolutions calling upon Libya to do so. It also imposed extensive economic sanctions against that country. Libya denied any involvement in the crime.
Proposals for trial in the Netherlands
1.13 In 1998 the governments of the UK and the US wrote to the Secretary General of the UN indicating that they were prepared to arrange a trial of the two accused before a Scottish court sitting in the Netherlands. The trial, it was proposed, would follow Scots law and procedure in every respect except that the jury would be replaced by a panel of three judges. Following Libya’s consent to the initiative, an agreement was entered into between the UK and the Netherlands to put it into effect. On the same date, the High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998 came into force in the UK, regulating such matters as the constitution of the trial and appeal courts.
1.14 Lords Sutherland, Coulsfield and MacLean were appointed to form the panel of judges. Lord Abernethy was appointed as an additional judge to assume the functions of any member of the panel who died during the proceedings or was absent for a prolonged period. He was not required to carry out that function. The location of the court was chosen as Kamp van Zeist in the Netherlands.
1.15 On 5 April 1999, the applicant and the co-accused travelled to the Netherlands where they were arrested by Scottish police officers. On 14 April 1999 they were fully committed for trial, and were detained at premises within the court precincts. The indictment was served upon them on 29 October 1999.
The trial
1.16 Preliminary pleas to the competency and relevancy of the charges were raised by both accused and argued on their behalf by counsel at a hearing on 7 December 1999. On 8 December, Lord Sutherland, sitting alone, held the charges to be both competent and relevant (see HMA v Al Megrahi (No 1) 2000 SCCR 177). Leave to appeal the decision was granted but no appeal was taken.
1.17 The trial commenced on 3 May 2000, and the cases for both accused closed on 8 January 2001. Neither the applicant nor the co-accused gave evidence. Following submissions by the parties on 18 January 2001 the diet was adjourned to allow the judges to deliberate upon their verdicts.
1.18 There were originally three alternative charges libelled on the indictment: (1) conspiracy to murder; (2) murder and (3) contravention of sections 2(1) and 5 of the Aviation Security Act 1982. However, on 10 January 2001, the advocate depute’s motion to delete charges (1) and (3), and to amend charge (2), was granted by the court. Consequently, by the end of the trial both accused faced only a single charge of murder in the following terms:
“(2) You ABDELBASET ALI MOHMED AL MEGRAHI being a member of the Libyan Intelligence Services and in particular being the head of security of Libyan Arab Airlines and thereafter Director of the Centre for Strategic Studies, Tripoli, Libya and you AL AMIN KHALIFA FHIMAH being the Station Manager and formerly the Station Manager of Libyan Arab Airlines in Malta and having, while acting in concert with others, formed a criminal purpose to destroy a civil passenger aircraft and murder the occupants in furtherance of the purposes of the said Libyan Intelligence Services and having between 1 January 1985 and 21 December 1988, both dates inclusive, within the offices of Libyan Arab Airlines at Luqa Airport, Malta and elsewhere in Malta in your possession and under your control quantities of high performance plastic explosive and airline luggage tags, while acting in concert together and with others [sub-paragraph (a) was deleted on the motion of the advocate depute]
(b) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did between 20 November and 20 December 1988, both dates inclusive, at the premises occupied by the firm of MEBO AG at the Novapark Hotel, Zurich Switzerland, at the premises occupied by you ABDELBASET ALI MOHMED AL MEGRAHI and by the said Libyan Intelligence Services, in Tripoli aforesaid, and elsewhere in Switzerland and Libya, through the hands of Ezzadin Hinshiri and Badri Hassan both also members of the Libyan Intelligence Services, order and attempt to obtain delivery from the said firm of MEBO AG of forty timers capable of detonating explosive devices and of a type previously supplied by the said firm of MEGO AG to member of the Libyan Intelligence Services;
(c) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did between 1 and 21 December 1988, both dates inclusive, at Luqa Airport, Malta without authority remove therefrom airline luggage tags;
(d) you ABDELBASET ALI MOHMED AL MEGRAHI did on 7 December 1988 in the shop premises known as Mary’s House at Tower Road, Sliema, Malta purchase a quantity of clothing and an umbrella;
(e) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did on 20 December 1988 at Luqa Airport, Malta enter Malta while you ABDELBASET ALI MOHMED AL MEGRAHI were using a passport in the false name of Ahmed Khalifa Abdusamad and you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did there and then cause a suitcase to be introduced to Malta;
(f) you ABDELBASET ALI MOHMED AL MEGRAHI did on 20 and 21 December 1988 reside at the Holiday Inn Tigne Street, Sliema, aforesaid under the false identity of Ahmed Khalifa Abdusamad;
(g) you ABDELBASET ALI MOHMED AL MEGRAHI and AL AMIN KHALIFA FHIMAH did on 21 December 1988 at Luqa Airport, aforesaid place or cause to be placed on board an aircraft of Air Malta flight KM180 to Frankfurt am Main Airport, Federal Republic of Germany said suitcase, or a similar suitcase, containing said clothing and umbrella and an improvised explosive device containing high performance plastic explosive concealed within a Toshiba RT SF 16 “Bombeat” radio cassette recorder and programmed to be detonated by one of said electronic timers, having tagged or caused such suitcase to be tagged so as to be carried by aircraft from Frankfurt am Main Airport aforesaid via London, Heathrow Airport to New York, John F Kennedy Airport, United States of America; and
(h) you ABDELBASET ALI MOHMED AL MEGRAHI did on 21 December 1988 depart from Malta and travel from there to Tripoli, Libya using a passport in the false name of Ahmed Khalifa Abdusamad, while travelling with said Mohammed Abouagela Masud also a member of the Libyan Intelligence Services; and such suitcase was thus carried to Frankfurt am Main Airport aforesaid and there placed on board an aircraft of Pan American World Airways flight PA103 and carried to London, Heathrow Airport aforesaid and there, in turn, placed on board an aircraft of Pan American World Airways flight PA103 to New York, John F Kennedy Airport aforesaid; and said improvised explosive device detonated and exploded on board said aircraft flight PA103 while in flight near to Lockerbie, Scotland whereby the aircraft was destroyed and the wreckage crashed to the ground and the 259 passengers and crew named in Schedule 1 hereof and the 11 residents of Lockerbie aforesaid named in Schedule 2 hereof were killed and you did murder them; and it will be shown that between 1 January 1985 and 21 December 1988, both dates inclusive, in Tripoli, Libya, at Dakar Airport, Senegal, in Malta and elsewhere the said Libyan Intelligence Services were in possession of said electronic timers, quantities of high performance plastic explosive, detonators and other components of improvised explosive devices and Toshiba RT SF 16 “Bombeat” radio cassette recorders, all for issue to and use by their members, including Mohammed El Marzouk and Mansour Omran Ammar Saber.”
1.19 The court returned its verdict on 31 January 2001. It unanimously found the co-accused not guilty. The verdict in relation to the applicant was recorded in the minutes of trial in the following terms (see also the transcript of proceedings on day 86 of the trial):
“The Court Unanimously found the Accused Abdelbaset Ali Mohmed Al Megrahi GUILTY on the Second Alternative Charge but that under deletion of the words ‘and you Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifah [sic] Fhimah did there and then cause a suitcase to be introduced to Malta’ in lines 4 to 6 of subhead (e) of said charge and under deletion of the words ‘said suitcase, or’ in line 4 of subhead (g) and under deletion of the word ‘similar’ in line [4] of said subhead (g)”.
1.20 The court sentenced the applicant to life imprisonment, backdated to 5 April 1999, and recommended that he serve a minimum period of 20 years before he could be considered for release on licence.
Post-trial developments
Appeal
1.21 The applicant lodged grounds of appeal against conviction on 11 June 2001 and leave to appeal was granted on 23 August 2001. The proceedings took place at Kamp van Zeist between 23 January and 14 February 2002, and the opinion of the court, rejecting the appeal, was issued on 14 March 2002.
Application to the European Court of Human Rights
1.22 On 12 September 2002 the applicant’s defence team lodged an application (number 33955/02) with the European Court of Human Rights in which they argued that the applicant’s right to a fair trial had been infringed by, inter alia, prejudicial pre-trial publicity. On 11 February 2003 the court ruled the application inadmissible on the basis that the applicant had failed to exhaust domestic remedies by raising these issues in the domestic forum.
Diplomatic developments
1.23 On 15 August 2003, Libya delivered a letter regarding the Lockerbie bombing to a meeting of the UN Security Council. The letter contained the following passages:
“… the remaining issues relating to fulfilment of all Security Council resolutions
resulting from the Lockerbie incident have been resolved…
… Libya as a sovereign state:
••• Has facilitated the bringing to justice of the two suspects charged with the
bombing of Pan AM 103, and accepts responsibility for the actions of its
officials;
••• Has cooperated with the Scottish investigating authorities before and during
the trial and pledges to cooperate in good faith with any further requests for
information in connection with the Pan Am 103 investigation. Such
cooperation would be extended in good faith through the usual channels;
••• Has arranged for the payment of appropriate compensation…”
1.24 On 12 September 2003, the UN passed a resolution lifting all UN sanctions
against Libya.
“Punishment part” hearing
1.25 At a hearing at the High Court in Glasgow on 24 November 2003 under the Convention Rights (Compliance) (Scotland) Act 2001, the punishment part of the applicant’s sentence was set at 27 years, again backdated to 5 April 1999. On 18 December 2003 the Lord Advocate appealed against the sentence as being unduly lenient.
For further background please refer to:-
http://www.bbc.co.uk/news/uk-scotland-scotland-politics-25465662
http://www.heraldscotland.com/news/home-news/lockerbie-exclusive-we-publish-the-report-that-could-have-cleared-megrahi.2012036248
http://www.sccrc.org.uk/ViewFile.aspx?id=612
http://lockerbiecase.blogspot.co.uk/2012/03/today-sunday-herald-publishes-behind.html
http://www.bbc.co.uk/news/uk-scotland-scotland-politics-25465662
https://www.bbc.co.uk/news/uk-scotland-south-scotland-43987079
http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/10688067/Lockerbie-bombing-was-work-of-Iran-not-Libya-says-former-spy.html
Megrahi case referred back to High Court for further appeal
[What follows is the text of the press release issued this afternoon by the Scottish Criminal Cases Review Commission:]
The Scottish Criminal Cases Review Commission (the Commission) has today again referred the case of the late Abdelbaset Ali Mohmed Al Megrahi to the High Court of Justiciary for determination.
As a result of the Commission’s decision, Mr Megrahi’s family is now entitled to instruct an appeal against his conviction on 31 January 2001 for the murders of the 243 passengers and the 16 crew on board Pan Am Flight 103 (PA 103) from London to New York, and 11 residents of Lockerbie, on 21 December 1988.
The Commission has sent a statement of reasons for its decision to the High Court. It has sent a copy of the document to Messrs Aamer Anwar & Co (whom the Megrahi family have instructed), the Lord Advocate and the Crown Agent.
The Commission is not, by law, permitted to provide members of the public with copies of its statement of reasons. However, given the continuing worldwide interest in this case, which sits uniquely within the criminal justice system in Scotland, the Commission has decided to provide a fuller news release than normal by setting out a summary of the case history and providing brief details of the application made to it, the trial court’s findings and the Commission’s conclusions.
Announcing the decision today, the Chairman of the Commission, Bill Matthews, said:
‘We recognise that the Commission plays an important role in the Scottish criminal justice
system and has extensive statutory powers to enable it to carry out its duties. This is the second time that the Commission has carried out what I believe has been a rigorous and independent review of this particular conviction, and we note that since our last review further information has become available, including within the public domain, which the Commission has now been able to consider and assess.
As the Chair of the SCCRC in 2007 said when the case was originally referred, our function is not to decide upon the guilt or innocence of an applicant. Our function is to examine the grounds of review identified and to decide whether any of the grounds meet the statutory test for a potential miscarriage.
I am pleased therefore that we are now able to issue a detailed statement of reasons which addresses all of the issues raised. I am satisfied that the matter is now returning to the appropriate forum – the appeal court – to consider fully all of the issues raised in our statement of reasons.’
Gerard Sinclair, the Chief Executive of the Commission, said today:
‘When we referred this case in 2007 I never expected that, over 10 years later, we would be asked not only to revisit our original decision, applying the law as currently stated, but also consider a whole new set of materials which had become available in the intervening years. I’m pleased to report that, after another lengthy investigation and review, we are now in a position to issue our decision in this unique case.
It seems important to note that, this month, an entirely new Board of the Commission from that which considered the matter in 2007 has again decided to refer this case. The 419-page decision issued today, with voluminous appendices, is a testament to the hard work and diligence of our investigating team over the last 3 years, involving us in novel and challenging court procedures along the way, and I pay tribute to them.
The Commission’s involvement in the case is, once again, at an end. It is now a matter for those representing the Crown and the defence to decide how to proceed at any future appeal. Thereafter, it will be for the appeal court to decide whether there has been a miscarriage of justice in this case.’
[RB: The grounds upon which the SCCRC has today concluded that there might have been a miscarriage of justice are set out in an appendix to the press release and are (a) that no reasonable trial court could have held on the evidence led at the trial that the case against Megrahi was proved beyond reasonable doubt; and (b) non-disclosure by the Crown of significant material that might have assisted the defence and weakened the prosecution case, depriving Megrahi of a real chance of acquittal. Regrettably, the Commission did not accept as indicating that there might have been a miscarriage of justice the branches of the application that related (i) to the metallurgical composition of the fragment of circuit board PT35b and (ii) to the evidence of ingestion of the bomb suitcase at Heathrow Airport rather than Luqa Airport in Malta.
The six grounds upon which the Commission in 2007 concluded that Abdelbaset Megrahi's conviction might have amounted to a miscarriage of justice are set out here.
The Justice for Megrahi campaign has issued a press release in the following terms:]
Since its establishment Justice for Megrahi has been committed to achieving justice for the victims of Pan Am 103, their families and friends, as well as for Abdelbaset al-Megrahi, whom we regard as having been wrongly accused and convicted.
Concerns that the conviction of Mr Megrahi in 2001 might be a gross miscarriage of justice were reinforced over the years as new information emerged that had not been considered during either the trial or at Megrahi’s first appeal.
Todays decision by the SCCRC to refer Mr Megrahi’s conviction to the Appeal Court is very welcome and gives some hope that the stain that has lingered over the Scottish justice system for so many years will finally be obliterated and that truth will triumph over deceit, self interest and procrastination.
We have always believed that, as the years of denial, uncertainty and doubt constituted an injustice perpetrated the name of Scotland, it should be Scotland’s justice system that should right this wrong.
The question is will the Scottish justice system finally allow the truth about the UK’s worst ever terrorist outrage to be told or will it, as it has for thirty years, continue to frustrate that goal?
We now put our trust in the Scottish Judiciary to allow a light to be shone into the darkness that has surrounded the investigation and trial of Abdelbaset al-Megrahi.
The Scottish Criminal Cases Review Commission (the Commission) has today again referred the case of the late Abdelbaset Ali Mohmed Al Megrahi to the High Court of Justiciary for determination.
As a result of the Commission’s decision, Mr Megrahi’s family is now entitled to instruct an appeal against his conviction on 31 January 2001 for the murders of the 243 passengers and the 16 crew on board Pan Am Flight 103 (PA 103) from London to New York, and 11 residents of Lockerbie, on 21 December 1988.
The Commission has sent a statement of reasons for its decision to the High Court. It has sent a copy of the document to Messrs Aamer Anwar & Co (whom the Megrahi family have instructed), the Lord Advocate and the Crown Agent.
The Commission is not, by law, permitted to provide members of the public with copies of its statement of reasons. However, given the continuing worldwide interest in this case, which sits uniquely within the criminal justice system in Scotland, the Commission has decided to provide a fuller news release than normal by setting out a summary of the case history and providing brief details of the application made to it, the trial court’s findings and the Commission’s conclusions.
Announcing the decision today, the Chairman of the Commission, Bill Matthews, said:
‘We recognise that the Commission plays an important role in the Scottish criminal justice
system and has extensive statutory powers to enable it to carry out its duties. This is the second time that the Commission has carried out what I believe has been a rigorous and independent review of this particular conviction, and we note that since our last review further information has become available, including within the public domain, which the Commission has now been able to consider and assess.
As the Chair of the SCCRC in 2007 said when the case was originally referred, our function is not to decide upon the guilt or innocence of an applicant. Our function is to examine the grounds of review identified and to decide whether any of the grounds meet the statutory test for a potential miscarriage.
I am pleased therefore that we are now able to issue a detailed statement of reasons which addresses all of the issues raised. I am satisfied that the matter is now returning to the appropriate forum – the appeal court – to consider fully all of the issues raised in our statement of reasons.’
Gerard Sinclair, the Chief Executive of the Commission, said today:
‘When we referred this case in 2007 I never expected that, over 10 years later, we would be asked not only to revisit our original decision, applying the law as currently stated, but also consider a whole new set of materials which had become available in the intervening years. I’m pleased to report that, after another lengthy investigation and review, we are now in a position to issue our decision in this unique case.
It seems important to note that, this month, an entirely new Board of the Commission from that which considered the matter in 2007 has again decided to refer this case. The 419-page decision issued today, with voluminous appendices, is a testament to the hard work and diligence of our investigating team over the last 3 years, involving us in novel and challenging court procedures along the way, and I pay tribute to them.
The Commission’s involvement in the case is, once again, at an end. It is now a matter for those representing the Crown and the defence to decide how to proceed at any future appeal. Thereafter, it will be for the appeal court to decide whether there has been a miscarriage of justice in this case.’
[RB: The grounds upon which the SCCRC has today concluded that there might have been a miscarriage of justice are set out in an appendix to the press release and are (a) that no reasonable trial court could have held on the evidence led at the trial that the case against Megrahi was proved beyond reasonable doubt; and (b) non-disclosure by the Crown of significant material that might have assisted the defence and weakened the prosecution case, depriving Megrahi of a real chance of acquittal. Regrettably, the Commission did not accept as indicating that there might have been a miscarriage of justice the branches of the application that related (i) to the metallurgical composition of the fragment of circuit board PT35b and (ii) to the evidence of ingestion of the bomb suitcase at Heathrow Airport rather than Luqa Airport in Malta.
The six grounds upon which the Commission in 2007 concluded that Abdelbaset Megrahi's conviction might have amounted to a miscarriage of justice are set out here.
The Justice for Megrahi campaign has issued a press release in the following terms:]
Since its establishment Justice for Megrahi has been committed to achieving justice for the victims of Pan Am 103, their families and friends, as well as for Abdelbaset al-Megrahi, whom we regard as having been wrongly accused and convicted.
Concerns that the conviction of Mr Megrahi in 2001 might be a gross miscarriage of justice were reinforced over the years as new information emerged that had not been considered during either the trial or at Megrahi’s first appeal.
Todays decision by the SCCRC to refer Mr Megrahi’s conviction to the Appeal Court is very welcome and gives some hope that the stain that has lingered over the Scottish justice system for so many years will finally be obliterated and that truth will triumph over deceit, self interest and procrastination.
We have always believed that, as the years of denial, uncertainty and doubt constituted an injustice perpetrated the name of Scotland, it should be Scotland’s justice system that should right this wrong.
The question is will the Scottish justice system finally allow the truth about the UK’s worst ever terrorist outrage to be told or will it, as it has for thirty years, continue to frustrate that goal?
We now put our trust in the Scottish Judiciary to allow a light to be shone into the darkness that has surrounded the investigation and trial of Abdelbaset al-Megrahi.
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