Thursday, 21 September 2017

Lockerbie & the Scotland Act

[This is the headline over an article by Alex Massie that appeared in the Coffee House section of The Spectator’s website on this date in 2009. It reads as follows:]

Could government ministers in London have stepped-in to prevent the release of Abdelbaset Ali al-Megrahi? A report in Scotland on Sunday yesterday says yes they could:
Scottish Secretary Jim Murphy could have overruled Scottish justice secretary Kenny MacAskill and stopped the release of Abdelbaset Ali Mohmed al-Megrahi if the case was deemed to have breached "international obligations".
Senior diplomats have insisted there was a "clear understanding" between the UK and the US that Megrahi would serve out his sentence in Scotland. The US Justice and State departments have also insisted they had been given assurances in the 1990s that Megrahi would remain imprisoned under Scottish jurisdiction.
[…]Andrew Mackinlay, a senior Labour MP, has now argued for the Scotland Act to be tightened to allow Westminster to override Scottish Government decisions if they have foreign policy implications for the whole of the UK. "Since there appears to be a provision in the Scotland Act, it should at least have been examined," he said.
[…]The key part of the Scotland Act says: "If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Executive would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken."
Consider me unpersuaded. In fact, consider me vexed by the confused logic of this piece. In the first place it’s not difficult to appreciate that an "understanding" is not necessariy the same thing as an "obligation".
Secondly, releasing Megrahi on compassionate grounds does not break the understanding the Americans believed they had been given that Megrahi would serve his time in Scotland. That’s for the very good reason that he has served all his time in Scotland. Now, had Kenny MacAskill accepted Libya’s petition to transfer Megrahi to a Tripoli jail then that would have broken the assurances given to the United States. But releasing him on compassionate grounds – if also, therefore, on license – does not.
This may seem a technical distinction but it is, I think, still an important one.
[RB: On topics other than the Lockerbie case I rarely agree with Alex Massie. But on Lockerbie he is usually sound, as he is here.]

Wednesday, 20 September 2017

Attempting to overcome mutual distrust

[The following are two snippets from this date in 1998 from the Libya News and Views website:]

A father whose daughter died in the bombing of a PanAm jet over Lockerbie, Scotland, in 1988, was heading for Tripoli Saturday to discuss the trial of the two Libyan suspects. Jim Swire, spokesman for UK Families Flight 103, which represents families of the victims, was to hold talks with Libyan officials. Swire left London earlier Saturday with Robert Black, a law professor at Edinburgh University. "The trip is being made following an invitation, passed through the Libyan Interests Section of the Saudi Arabian Embassy in London, to travel to the North African state for discussions," said a spokesman for Swire. [AFP]

A Dutch airforce base has been chosen as the trial venue for two Libyans accused of the Lockerbie bombing, it was announced Friday. Britain and the Netherlands have signed an agreement that the hearing, if it takes place, will be at Camp Zeist, part of the Soesterberg air base, near The Hague. [The Scotsman]

[RB: What follows is an account written by me some years ago about this visit:]

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

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

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

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

I returned to the UK after this visit to Libya reasonably confident that a trial would take place.  It was clear to me that the Libyan authorities at the highest level wanted it to happen and that the accused men wanted their families and themselves to be able to get on with their lives, something that could never happen, even within the boundaries of Libya, while the charges against them remained unresolved and UN sanctions remained in place.  One possible impediment was the hard-line attitude towards surrender for trial overseas that had been taken over the years by the Libyan People’s Congress (the highest legislative and policy-making body under Libya’s idiosyncratic constitution).  However, this potential hurdle was removed on 15 December 2008 when the People’s Congress, at a session held in Sirte, announced that it approved the trial proposal and adjured all three interested governments -- Libya, the United Kingdom and the United States -- to take all necessary steps to remove any remaining obstacles.

In fact, such was the distrust between the various concerned parties that removal of the obstacles was not easily achieved and it was another three months before Megrahi and Fhimah arrived in the Netherlands.

Tuesday, 19 September 2017

Air base becomes British during Lockerbie proceedings

[This is the translated headline over a report published on this date in 1998 in the Dutch newspaper Trouw. In English (courtesy of Google Translate assisted by me) it reads as follows:]

SOESTERBERG - Kamp Zeist on the Soesterberg air base temporarily becomes British territory, to serve as a location for the Lockerbie trial.

Whether the trial of two Libyans suspected of blowing up an American passenger plane in 1988 over  Lockerbie in Scotland actually takes place in the Netherlands depends on Libyan leader Kadafi. But in anticipation, Minister of Foreign Affairs Van Aartsen and British Ambassador Spencer have already signed an agreement in which the camp is handed over to the British for the duration of the process. The former US hospital will function as a courtroom.

The Libyan suspects will be tried by a Scottish criminal court, which will judge according to Scottish law. The [Dutch] Cabinet has adopted a bill that regulates this constitutional novelty. Never before has a country ceded a piece of its sovereignty to another country. The bill states that any penalties imposed by the Scottish court may not be reviewed by a Dutch judge.

With the transfer of Kamp Zeist, the trial of the two Libyans has come a lot closer, Ambassador Spencer says. Minister Van Aartsen is not worried about security when the trial is held at Soesterberg. The air base was chosen for that reason. If Libya agrees with a trial at this location and transfers the two suspects, the risk of terrorist actions is minimised according to the minister. He thinks it is not unlikely that Kadafi will now be satisfied. Previously, the Libyan leader demanded that the suspects should serve any sentence eventually imposed in the Netherlands and not in Great Britain.

Mayor R Boekhoven of Zeist does not expect any security problems at the camp. According to him, the virtually empty site, previously used by the American military, is easy to protect. It is separated from the air base by the Utrecht-Amersfoort motorway. Only the Air Force Chapel is still in use.

Monday, 18 September 2017

An unreasonable verdict based on unreliable evidence

[What follows is excerpted from a report published on the website of The Guardian on this date in 2009:]

The man convicted of the Lockerbie bombing has released a dossier of legal papers which he claims are proof he was wrongly convicted of the worst terrorist attack on British soil.

The documents, published online today by Abdel Basset al-Megrahi, show that serious doubts about the reliability of the key witness at his trial were raised independently by Scotland's official body, which investigates suspected miscarriages of justice.

The dossier demonstrates that the Scottish Criminal Cases Review Commission (SCCRC) sent Megrahi's case back to the court of appeal in 2007, after deciding that the judges who convicted him had made a series of errors about the evidence of a Maltese shopkeeper, Tony Gauci – the only witness to link the Libyan to the alleged plot.

According to the commission, those mistakes were significant enough to raise substantial doubts about the safety of Megrahi's conviction of killing 270 people in the Lockerbie bombing on 21 December 1988.

The crucial mistake, the SCCRC said, was believing prosecution claims that Megrahi had bought clothes at Gauci's shop on 7 December 1988, allegedly used later in the suitcase bomb. This evidence was "unreasonable", the SCCRC said, and was alone grounds for belief that Megrahi was wrongly convicted.

The commission said that evidence available at the trial, including the weather and the time Christmas lights were switched on near Gauci's shop, suggested that the clothes were actually bought on 23 November 1988 – when Megrahi was not in Malta.

The 298-page dossier, published on a website specially set up for the purpose, is the convicted bomber's attempt to prove his innocence after his controversial release from Greenock prison on compassionate grounds last month. (...)

The papers were used for the first two stages of his appeal earlier this year, but Megrahi abandoned the appeal two days before he was freed and before the appeal court could give its judgement on the first grounds for appeal.

When Megrahi confirmed the case was being dropped his lawyers told the appeal court that he believed this would speed up his release, fuelling claims – later denied by Megrahi – that a deal was struck to prevent embarrassing evidence about his conviction emerging in court.

In a statement released today by his solicitors, Megrahi said: "I have returned to Tripoli with my unjust conviction still in place. As a result of the abandonment of my appeal I have been deprived of the opportunity to clear my name through the formal appeal process. I have vowed to continue my attempts to clear my name.

"I will do everything in my power to persuade the public, and in particular the Scottish public, of my innocence."

In a reference to the many US relatives and senior figures in the US government who were furious at his release, including the secretary of state, Hillary Clinton, he said he hoped the papers would "assist in the understanding of my case, especially for those who have been most profoundly affected by it".

According to the dossier, the commission believed that the three judges who jailed Megrahi after an unprecedented trial in Holland in January 2001 had unreasonably dismissed a number of contradictions and ambiguities in Gauci's interviews with police and in court.

Megrahi's lawyers said Gauci was interviewed 23 times by Scottish police, and an undisclosed number of times by FBI and CIA investigators. He first appeared to identify Megrahi 27 months after the date of purchase of the clothes, while it took 12 years for the trial to take place. His lawyers are expected to allege next week that Gauci received a $2m reward after Megrahi's conviction.

The SCCRC said that Gauci's interviews and his evidence in court showed that he: was unable to identify the date the clothes were bought, and frequently said it may have been November or December; was confused about the date the Christmas lights went up; repeatedly told police he could not remember the exact time or day.

The commission concluded that the judges reached an unreasonable verdict based on unreliable evidence, Megrahi's appeal papers state. Megrahi's lawyers added that the verdict "consists of defective reasoning or self-misdirection in a number of respects".

His documents also reveal detailed challenges to key aspects of the bomb plot as described by prosecutors. There was no proof that the suitcase was put on board a feeder flight at Luqa airport in Malta which went to Frankfurt airport on 21 December. There was also no evidence to prove that Megrahi had been involved in the plot, and the dossier claims that the judges had unfairly rejected defence evidence at the trial that pointed towards a different culprit: the Iranian-funded Popular Front for the Liberation of Palestine-General Command.

Sunday, 17 September 2017

Megrahi’s family fear appeal will fail

[This is part of the headline over a report by Marcello Mega in the Scottish edition of The Sunday Times today. It reads in part:]

The son of the man convicted of the Lockerbie bombing has accused relatives of American citizens who died in the attack of closing their minds to fresh evidence about the atrocity.

Ali Megrahi, 25, spent some of his childhood in Scotland where his father, Abdelbaset al-Megrahi, was jailed.

He fears there is little appetite in the US and UK to continue to investigate the December 1988 attack.

Relatives of the only man convicted of the bombing have launched a fresh attempt to clear his name. Aamer Anwar, the solicitor representing the Megrahi family, has submitted papers to the Scottish Criminal Cases Review Commission (SCCRC) in the hope that it will lead to the case being referred to the appeal court.

Megrahi is especially angry with US relatives of the 270 dead, saying they would not open their minds to the evidence he believes clears his father. He points to scientific tests carried out on a timer fragment linked to the bomb, which the trial judges said proved Libyan involvement.

He says these have shown the metallurgical composition of the fragment was not the same as the tin/lead alloy of the timers sold to Libya by the Swiss company Mebo, casting doubt on the safety of his father’s conviction.

But Susan Cohen, from New Jersey, who lost her 20-year-old daughter Theodora in the bombing, said: “Talk of planted evidence and cover-ups is fake news. I put it on the same level as the guy who said the Clintons were running a sex abuse ring in Washington.

“The doubters insist Libya was framed, but where is their evidence? I saw the evidence that convicted Megrahi in court.”

Adelbaset al-Megrahi died of cancer on May 20, 2012, 33 months after his release from a life sentence on compassionate grounds. The SCCRC had referred the case back for a second appeal, citing six grounds that could each constitute a miscarriage of justice, but Megrahi abandoned the appeal in the belief that this would secure his release from prison in Scotland.

When later asked to refer it back again by Anwar, acting on behalf of the Megrahi family and UK victims who doubted Megrahi’s guilt, the SCCRC declined in the absence of a signed mandate from the family, because of conflict in Libya. Late last year Megrahi’s family managed to leave war-torn Libya to meet Anwar in Switzerland to sign papers instructing him, making it clear that they support an appeal.

But his younger son now fears the commission and the Scottish courts will try to avoid the potential embarrassment of tackling the fresh evidence.

He said: “Scotland must show that it has courage and is not a lapdog for the Americans who don’t want to know the truth.

“The new evidence proves my father’s innocence, but the Americans close their eyes and ears.

“My family feels for the victims and their families, but we were also victims of Lockerbie. Soon, everyone will know that my father is innocent. If the court does not grant another appeal, we have to find a way. The evidence never dies.”

Robert Black, emeritus professor of Scots Law at Edinburgh university and the architect of the Lockerbie trial held in the Netherlands with three Scottish judges and no jury, also has concerns.

Black, who was educated at Lockerbie Academy, said: “The SCCRC did not appear keen to open this up again and found a way, after seeking guidance from the courts, to justify refusal.

“Now there is no doubt Megrahi’s family is involved, there is still a danger they might seek advice from the Scottish courts, and that advice might be that it is no longer in the public interest to reopen the investigation. I fear that could kill the search for justice stone dead.” [RB: While I fear that the Scottish Criminal Cases Review Commission may reject the current application on the “interests of justice” limb of the test they have to apply -- they can scarcely do so on the “miscarriage of justice” branch of the test, having regard to the prior SCCRC history of the case and the new evidence -- I remain confident and relatively optimistic about the Police Scotland Operation Sandwood investigation.]

The Crown Office said: “It would be inappropriate to comment on the application to the SCCRC, which has not been shared with the crown, while it is being considered.”

Appeal Court succumbs to security-vetted counsel abomination

[What follows is the text of a report published on the BBC News website on this date in 2008:]

The Appeal Court in Edinburgh is to appoint a special defender to view confidential documents wanted by the Lockerbie bomber in his appeal.

It follows an extraordinary hearing held behind closed doors at which the UK Government argued that revealing the documents would compromise security.

Libyan national Abdelbaset ali Mohmed al-Megrahi is serving life for killing 270 people in the 1988 bombing.

He has been granted leave to appeal against his conviction.

The appointment of a special defence lawyer is the latest twist in the attempt to have his conviction overturned.

The UK Government argued last month it should not be forced to hand over highly confidential documents wanted by Megrahi's legal team.

Foreign Secretary David Milliband said to publish the documents, sent to the government by an un-named foreign power, would compromise Britain's national security.

The advocate general, who represents the UK government in Scottish courts, asked the court to appoint a security-vetted lawyer who could look at the documents on Megrahi's behalf.

He would then argue which parts of the document should be published - although judges would make the final decision about how much, if any, should be revealed.

So far the court has not published its decision, but in a letter seen by BBC Scotland, the Foreign Office minister Kim Howells says it has decided to appoint a special defender.

It will be the first time such a course has been taken in Scotland, although some English courts have appointed special defenders to examine evidence in terrorism cases.

There has been no official comment from Megrahi's legal team, although it is thought they are planning an appeal to the Privy Council, arguing the move will violate his human rights.

Dr Hans Koechler, the United Nations special envoy to the trial in the Netherlands of the two Libyans accused of the Lockerbie bombing, criticised the development as "intolerable".

In a BBC interview, Dr Koechler said it was "detrimental to the rule of law."

He said: "In no country can the situation be allowed where the accused or the appellant is not free to have his own defence team, and instead someone is imposed upon him."

It is expected the full appeal by Megrahi, who is serving his life sentence in Greenock Prison, will be heard next year.

Saturday, 16 September 2017

There was only ever an illusion of a trial

What follows is an item originally posted on this blog on this date in 2009.

The framing of al-Megrahi


[This is the headline over a long and detailed article -- 6500 words -- by Gareth Peirce in the current issue of the London Review of Books. It is an utterly devastating critique of the Lockerbie trial and what led up to it and flowed from it. Anyone interested in the Lockerbie affair needs to read and digest it in full. The following are extracts.]

Only a simpleton could believe that Abdelbaset Ali al-Megrahi, convicted of responsibility for the Lockerbie bombing, was not recently returned to his home in Libya because it suited Britain. The political furore is very obviously contrived, since both the British and American governments know perfectly well how and for what reasons he came to be prosecuted. More important than the present passing storm is whether any aspect of the investigation that led to al-Megrahi’s original conviction was also about oil, or dictated by other factors that should have no place in a prosecution process. (...)

[A] number of the bereaved Lockerbie families have of necessity themselves become investigators, asking probing questions for two decades without receiving answers; they have learned sufficient forensic science to make sense of what was being presented at al-Megrahi’s trial and make up their own minds whether the prosecution of two Libyans at Camp Zeist near Utrecht was in fact a three-card trick put together for political ends.

Perhaps the result could have been different if there had been an entirely Scottish police investigation, with unrestricted access to all available information, without interference or manipulation from outside. Instead, from the beginning, the investigation and what were to become the most important aspects of the prosecution case against al-Megrahi were hijacked. Within hours, the countryside around Lockerbie was occupied: local people helping with the search under the supervision of Dumfries and Galloway police realised to their astonishment that the terrain was dotted with unidentified Americans not under the command of the local police. (...)

Although the crime was the most hideous Scotland had ever known, the integrity of the crime scene was violated; in part because outsiders were conducting a desperate search for wreckage that it was important for them to find and spirit away. As many police investigations over the years have demonstrated, such distracting irregularities can simply be red herrings, and these intrusions may have no bearing on the question of who blew up Pan Am 103. Was it individuals? Was it a country? And if so which one? From the very beginning, in fact, it seemed that the case could and would be easily solved. Considerable (and uncomplicated) evidence immediately to hand suggested who might be responsible; it was as if giant arrows were pointing towards the solution.

In the weeks before the bombing in December 1988 there had been a number of very specific warnings that a bomb would be placed on a Pan Am aircraft. Among them was a photograph of a bomb in a Toshiba cassette radio wired to a barometric timer switch; a number of such bombs had been found earlier in 1988 in the possession of members of a small group with a history of successfully carrying out bombings, primarily of American targets. One group member told police that five bombs had been made; at least one was missing at the time of the Lockerbie disaster and never recovered. The warnings were sufficiently exact that the staff of the American Embassy in Moscow, who usually travelled by Pan Am when they returned to the US for Christmas, used a different airline. Flora Swire, who was travelling to New York to spend Christmas with her boyfriend, found it surprisingly easy to buy a ticket.

All the Toshiba cassette bombs that had been seized were found, when tested, to run for 30 minutes after they were set. (...) It was precisely 38 minutes after Pan Am Flight 103 took off from Heathrow on 21 December 1988 that it exploded over Lockerbie; when the remnants of the destroyed plane and its contents were put together piece by piece by the Dumfries and Galloway police, fragments of a Toshiba cassette radio were found. (...)

That Iran and the PFLP-GC were responsible had fitted comfortably with UK and US foreign policy in the Middle East. Both countries had severed relations with Syria on the grounds of its persistent support for international terrorism; both had supported Iraq in the Iran/Iraq war, which ended in the summer of 1988. The obvious truth as it appeared at the time was that the Jibril group, sponsored in this instance by Iran, was a logical as well as politically acceptable fit.

Then, in August 1990, Saddam Hussein invaded Kuwait, thereby putting at risk almost 10 per cent of US oil supplies, and the stability of the Saudi and Gulf sheikhdoms on which the West depended to preserve the status quo in the region. A sudden shift of alliances was necessary: if Iraq had to be confronted, then Iran had to be treated differently and the Syrian regime needed to be brought on board. At the beginning of 1991 Syrians joined Western troops in the attack on Saddam Hussein’s invading army.

The centre of the Lockerbie investigation had by this time ceased to be Scotland: the CIA was in charge. Vincent Cannistraro had made his mark under Ronald Reagan, with a clandestine programme to destabilise the Libyan regime. He boasted that he ‘developed the policy towards Libya’ which culminated in the bombing of Gaddafi’s house in Tripoli in 1986 on the basis of intercept evidence later acknowledged to be false. Now brought out of retirement, Cannistraro shifted the investigation’s approach. The suspect country was no longer Iran but Libya, and in November 1991, the UK and the US made a joint announcement that two Libyan Airlines officials, Abdelbaset Ali al-Megrahi and Al Amin Khalifa Fhimah, had planted the bomb in Malta on behalf of Libyan intelligence. Douglas Hurd, the foreign secretary, announced to the House of Commons that Libyans alone were suspected and that other countries were not implicated. (...)

The key features needed to prosecute al-Megrahi successfully were the scientific identification of the circuit-board fragment, which would in turn establish its origin, and the identification of the purchaser of the clothes in Malta. The timers, the indictment stated, were made by a firm in Switzerland; their circuit board matched the fragment retrieved from Lockerbie, and they sold the timers exclusively to Libya. Everything, essentially, hinged on those links.

Who found the fragment? And who understood its relevance? Thomas Hayes of the Royal Armament Research and Development Establishment (RARDE) claimed the find (with his colleague Alan Feraday) and Thomas Thurman of the FBI claimed the analytical victory. All were swiftly hailed (or hailed themselves) as heroes. Thurman appeared on television on 15 November 1991, the day after indictments were issued against the two Libyans, boasting that he had identified the piece of circuit board as part of a timing device that might have been sold to Libyan Airlines staff. ‘I made the identification and I knew at that point what it meant. And because, if you will, I am an investigator as well as a forensic examiner, I knew where that would go. At that point we had no conclusive proof of the type of timing mechanism that was used in the bombing of 103. When that identification was made of the timer I knew that we had it.’ This was the claim – the hard evidence – that linked Libyans to the crime. If the claim was false the bereaved Lockerbie families have been deceived for 20 years.

On 13 September 1995 the FBI’s forensic department was the subject of a programme broadcast in the US by ABC. At its centre was a memorandum from the former head of explosive science at the FBI, Dr Frederic Whitehurst. It was a devastating indictment of a former colleague. The colleague was Thomas Thurman and the accusations related to his investigation of a terrorist attack in which a judge was killed by pipe bombs. Two years later, as a result of a review by the US inspector general, Michael Bromwich, into a large number of criminal investigations, Thomas Thurman was barred from FBI labs and from being called as an expert witness. Bromwich had discovered that he had no formal scientific qualifications and that, according to a former colleague, he had been ‘circumventing procedures and protocols, testifying to areas of expertise that he had no qualifications in . . . therefore fabricating evidence’. (...)

There were throughout two aspects of the investigation over which the Scottish authorities exerted little authority: in the US, the activities of the CIA and in particular of Thomas Thurman and the forensic branch of the FBI; in England, the forensic investigations of RARDE, carried out by Hayes and Feraday. Without Hayes’s findings, the Lockerbie prosecution would have been impossible. His evidence was that on 12 May 1989 he discovered and tweezed out from a remnant of cloth an electronic fragment, part of a circuit board. The remnant of cloth, part of a shirt collar, was then traced to a Maltese shop. A number of aspects of the original circuit board find were puzzling. The remnant was originally found in January 1989 by a DC Gilchrist and a DC McColm in the outer reaches of the area over which the bomb-blast debris was spread. It was labelled ‘cloth (charred)’ by him, but then overwritten as ‘debris’ even though the fragment of circuit board had not yet been ‘found’ by Hayes. The fragment found by Hayes, and identified as a MEBO circuit board by Thurman, meant that the thesis of an Air Malta involvement could survive. (...)

No forensic scientist knows when he conducts his examinations whether or when there will be a prosecution that will depend on them; this makes it all the more important that his notes are exact. Hayes confirmed that it was his practice to draw pieces of circuit board where he found them – for instance in the vicinity of blast-damaged material – but he made no such drawings of this item, nor had he given it an exhibit reference number as he had every other exhibit being designated at the time, nor did he carry out a standard test for traces of explosive. Almost a month after his inspection of the timer fragment, Hayes was identifying and drawing exhibits which were given reference numbers smaller than the number of the vital exhibit. He recorded his finding on page 51 of his notes, but the pages originally numbered 51-55 had been renumbered 52-56 at some point. Hayes stated that he had ‘no idea’ when the change in pagination was carried out. The inference put to Hayes was that the original page 51 and the following pages had been renumbered, an original page removed and space made to insert what was now page 51 of his notes.

Curiously, a memorandum from Hayes’s colleague Feraday, written on 15 September 1989, to a detective inspector working on the case, referred to a fragment of green circuit board: ‘Willy, enclosed are some Polaroid photographs of the green circuit board. Sorry about the quality, it is the best I can do in such a short time.’ No one was able to explain why there should have been any shortage of time to make available in September 1989 photographs of an item that had been found on 12 May. Feraday’s note continued: ‘I feel that this fragment could be potentially most important so any light your lads or lasses can shed upon the problem of identifying it will be most welcome.’ Again no one was able to explain what light the lads and lasses could shed on something it was most curious they had not seen before now, given that Hayes had recovered it in May. Clearly it could not have been seen by the police before the cloth was passed to Hayes at RARDE and the fragment extracted by him. If Hayes had photographed the exhibit, as was his normal practice, then Feraday would not have needed to rely on Polaroids of dubious quality. The issue of his notes’ pagination was described by Hayes as ‘an unfathomable mystery’. In view of the importance of exhibit PT/35(b), how could the court have been satisfied by this evidence? (...)

To discover that al-Megrahi’s conviction was in large part based on the evidence of scientists whose value as professional witnesses had been permanently and publicly demolished ten years before his trial is astounding. The discovery nearly two decades ago of a large number of wrongful convictions enabled by scientific evidence rightly led to demands that the community of forensic scientists change its ways. Similarly, a series of catastrophic misidentifications required the introduction of sound new practices for evidence based on that most fragile of human attributes, visual memory. Witnesses must not be prompted; a witness’s memory, as far as possible, must be as safely protected from contamination as a crime scene. The first description is vital. If a witness makes a positive identification of one individual, no subsequent identification of a second is permissible. Equivocation and uncertainty are not enough. Even if the science that convicted al-Megrahi had not offended against every minimum standard, then the second pillar of the prosecution case, his identification by Tony Gauci, the Maltese shopkeeper, would remain spectacular in its noncompliance with any safeguard. He described al-Megrahi as ‘6’0’’’ (he was 5’8’’), ‘50 years old’ (he was 37), and ‘hefty’; said that he ‘had been to the shop before and after’, ‘had been there only once’; that he ‘saw him in a bar months later’; that he ‘will sign statement even though I don’t speak English’; that al-Megrahi ‘was similar but not identical’, ‘perhaps like him but not fully like him’, and, fatally for any identification of al-Megrahi in the first place, that he was ‘like the man in the Sunday Times’ (in other words, like Abu Talb, whose picture Gauci had initially identified). But Gauci’s evidence was needed and, reports suggest, handsomely rewarded. He apparently now lives in Australia, supported by millions of US dollars.

That a court of three experienced judges convicted on such evidence and that an appeal court upheld the conviction is profoundly shocking. Köchler, the UN observer, reported finding the guilty verdict ‘incomprehensible’ in view of the court’s admission that Gauci’s identification was ‘not absolute’. We had come to believe that such an outcome, resting on invalid identification, was no longer possible. ‘The guilty verdict’, Köchler wrote, was ‘arbitrary, even irrational’ with an ‘air of international power politics’ present ‘in the whole verdict’, which was ‘based on a series of highly problematic inferences’. He remarked on the withholding of ‘substantial information’ (‘more or less openly exercised influence on the part of actors outside the judicial framework’) and on the very visible interference with the work of the Scottish prosecutors by US lawyers present in the well of the court. But most seriously, he set out his ‘suspicion that political considerations may have been overriding a strictly judicial evaluation of the case’. All of this harks back to the bad old days when a blind eye was turned to the way convictions were obtained.

Al-Megrahi’s trial constituted a unique legal construct, engineered to achieve a political rapprochement, but its content was so manipulated that in reality there was only ever an illusion of a trial. Dr Köchler recorded at its conclusion that it was ‘not fair’ and that it was not ‘conducted in an objective manner’, so that there were ‘many more questions and doubts at the end than the beginning’.

Friday, 15 September 2017

Lockerbie father calls for restraint

[This is the headline over a report published on the BBC News website on this date in 2001, four days after the aircraft attacks on the World Trade Center and the Pentagon. It reads as follows:]

The father of one of the victims of the Lockerbie disaster has called for caution in any retaliation for the US terror attacks.

John Mosey, a leading member of the Lockerbie support group, wrote to the prime minister to express support for action, but also of his concerns.

The UK Families Flight 103 group wrote to Tony Blair after he pledged unqualified support for any reprisals the US should take.

It reminded Mr Blair of the 1988 tragedy, in which 270 people were killed, and said care should be taken so that more innocent people are not hurt.

Mr Mosey's daughter Helga, 19, was among the victims when Pan Am Flight 103 was blown up over Lockerbie.

''The utmost care must be taken that whatever path is eventually pursued is successful and does not harm innocent people thus producing another batch of terrorists,'' Mr Mosey wrote.

He said the civilised world clearly had to support the US in taking ''drastic and effective action to root out this network of evil''.

But he added: "We must find a better way of dealing with our international differences than simply picking up a bigger stick with which to beat the other guys."

Mr Mosey said his daughter and those who died in Lockerbie were victims of ''aggressive American foreign policies'' either in the Gulf or Tripoli.

He also expressed the sadness felt by the Lockerbie support group over the US terror attacks and for the victims' families.

''Our feelings go out to the many in whose homes there is an empty place today, who are eagerly watching their TV screens and waiting desperately for information regarding someone who is missing."

Mr Mosey said he wrote ''as an individual whose family has been a victim of a terrorist attack''.

Tuesday's attacks in the US brought back memories of 13 years ago to the families of victims and residents of Lockerbie.

Pamela Dix, whose brother Peter died in the Lockerbie bomb, said: "It's times like this that those of us who have experienced something of this nature are drawn together.''