James Robertson on Megrahi book (and Peter Fraser)

[What follows is a review of Megrahi: You are my Jury on the Amazon website by ‘Ken Fyne’ who (I am reliably informed) is none other than Scotland’s most distinguished living novelist, James Robertson:]

For those who have long had severe doubts, if not downright disbelief, about the way the Lockerbie investigation and trial were conducted, John Ashton's book provides all the detailed analysis of what went wrong that one could wish for. Just about all the relevant information is gathered here, so it is an excellent handbook for anyone interested in this tragic affair.

Of course the purpose of the book is to put Megrahi's side of the story, and some will find that difficult or even offensive. But what emerges - whether or not you believe that he is the victim of a miscarriage of justice - is such a damning critique of the Scottish justice system that it is surely inconceivable that the legal and political establishment can hold out much longer against disclosure of all the facts. It is certainly unacceptable if the report of the Scottish Criminal Cases Review Commission into why Megrahi may have had an unfair trial is not soon published in full: that report is now leaking like a sieve and there is no longer any sensible reason not to let us see all of it.

Personally I believe that Megrahi is innocent. I am willing to be persuaded otherwise but the original trial judgment certainly failed in every way to convince me of his guilt. John Ashton's book scores particularly highly in describing all the information that came to light AFTER the trial - including much evidence that appears to have been deliberately withheld from the defence team by the Crown and the police. The incredible interference and control of American intelligence agencies in the affair is also well documented.

This book rightly concentrates on why Megrahi's conviction was wrong, and does not dwell on the question of his compassionate release, which is a secondary matter. Whether Scotland opts for independence in the next few years or stays within the United Kingdom, its justice system has a terrible stain on it, and will continue to have unless and until a full inquiry into the whole sorry business brings the facts out of the shadows.

[James Robertson also has a letter published in today’s edition of The Herald.  It reads as follows:]

Is the Lord Fraser of Carmyllie who envisages a future scenario in which English aircraft "bomb the hell" out of Glasgow and Edinburgh airports by any chance the same Lord Fraser of Carmyllie who last year was appointed by Alex Salmond as an adviser to the Scottish Government on standards of ministerial conduct ("English 'would bomb our airports'", The Herald, March 13 & Letters, March 14)?

And could he be the same Lord Fraser of Carmyllie who as Lord Advocate drew up the indictment against Abdelbaset Ali Mohmed al Megrahi for the Lockerbie bombing, was satisfied by the verdict against Megrahi, yet subsequently described the Crown's key witness, without whose evidence Megrahi could not have been found guilty, as "not quite the full shilling" and "an apple short of a picnic"?

And can we take anything said by Lord Fraser of Carmyllie with any degree of seriousness?


[A letter from Tom Minogue in the 16 March edition of The Scotsman reads as follows:]

In a 2005 interview, Peter Lovat Fraser, Lord Fraser of Carmyllie, who as lord advocate set up the Lockerbie trial at Camp Zeiss in the Netherlands – which resulted in the conviction of Libyan Abdelbaset Ali Mohmed al-Megrahi – said that the key prosecution witness, Tony Gauci, was “not quite the full shilling”, and “an apple short of a picnic”.

As we now know (...) on the contents of the 821-page Scottish Criminal Cases Review Commission dossier, that Gauci received payment equivalent to £2 million, does it not raise questions about the former lord advocate’s judgment?

Surely if a man of modest means such as Mr Gauci can become a millionaire for giving evidence for a few days in a Scottish court case, he cannot be said to be anything other than very astute?

If he were to be the subject of analogy surely a more fitting example would be “as sharp as a tack”?

Lord Advocate Peter Fraser ennobled

[On this date in 1989 Peter Fraser QC was elevated to the peerage as Lord Fraser of Carmyllie. What follows is excerpted from his entry in Wikipedia:]

Fraser first stood for Parliament for Aberdeen North in October 1974, but was beaten by Labour's Robert Hughes.

He was elected as a Conservative & Unionist Member of Parliament for South Angus in 1979, where he remained in the House of Commons until June 1987 (from 1983 representing East Angus). He was Parliamentary Private Secretary to George Younger, Secretary of State for Scotland. In 1982 he was appointed Solicitor General for Scotland by Margaret Thatcher and became Lord Advocate in 1989. He was created a life peer as Baron Fraser of Carmyllie, of Carmyllie in the District of Angus on 10 February 1989 and was appointed a member of the Privy Council the same year.

During his time as Scotland's senior law officer, he was directly responsible for the conduct of the investigation into the bombing of Pan Am Flight 103. Lord Fraser drew up the 1991 indictment against the two accused Libyans and issued warrants for their arrest. But five years after the Pan Am Flight 103 bombing trial, when Abdelbaset al-Megrahi was convicted of 270 counts of murder, he cast doubt upon the reliability of the main prosecution witness, Tony Gauci. According to The Sunday Times of 23 October 2005, Lord Fraser criticised the Maltese shopkeeper, who sold Megrahi the clothing that was used to pack the bomb suitcase, for inter alia being "not quite the full shilling" and "an apple short of a picnic".

Lord Advocate, Colin Boyd, who was chief prosecutor at the Lockerbie trial, reacted by saying: "It was Lord Fraser who, as Lord Advocate, initiated the Lockerbie prosecution. At no stage, then or since, has he conveyed any reservation about any aspect of the prosecution to those who worked on the case, or to anyone in the prosecution service." Boyd asked Lord Fraser to clarify his apparent attack on Gauci by issuing a public statement of explanation.

William Taylor QC, who defended Megrahi at the trial and the appeal, said Lord Fraser should never have presented Gauci as a crown witness: "A man who has a public office, who is prosecuting in the criminal courts in Scotland, has got a duty to put forward evidence based upon people he considers to be reliable. He was prepared to advance Gauci as a witness of truth in terms of identification and, if he had these misgivings about him, they should have surfaced at the time. The fact that he is coming out many years later after my former client has been in prison for nearly four and a half years is nothing short of disgraceful. Gauci's evidence was absolutely central to the conviction and for Peter Fraser not to realise that is scandalous," Taylor said.

Tam Dalyell, former Labour MP who played a crucial role in organising the trial at Camp Zeist in the Netherlands, described Lord Fraser's comments as an 'extraordinary development': "I think there is an obligation for the chairman and members of the Scottish Criminal Cases Review Commission to ask Lord Fraser to see them and testify under oath - it's that serious. Fraser should have said this at the time and, if not then, he was under a moral obligation to do so before the trial at Zeist. I think there will be all sorts of consequences," Dalyell declared.

[RB: Readers may also care to be reminded of James Robertson's magnificent jeu d'esprit Oh, come on, it's all over now.]

Lord Fraser and the unanswered questions

[This is the headline over an article in today’s edition of the Scottish Review by the editor, Kenneth Roy.  It reads as follows:]

Two of the leading figures in the Lockerbie scandal have fallen off their perches within 13 months of each other. Abdelbaset al-Megrahi, the only man to have been convicted of the bombing, died on 20 May 2012, aged 60, and Lord Fraser of Carmyllie, the lord advocate who drew up the indictment against al-Megrahi and his co-accused, died on 23 June 2013, aged 68.

Few tears were shed for al-Megrahi, except by those – a small minority, though a significant one – who believed him to be innocent. In remarkable contrast, the tributes to his accuser, in the few days since his sudden death at the weekend, have been fulsome. Leaders of most parties, including Scotland's ruling one, have been at pains to assure us that he will be keenly missed from Scotland's public life.

Perhaps he will. He was certainly an ornament of it for long enough; and he had an enviable capacity for bouncing back from life's adversities. Just before Christmas 2006 he was charged with disorderly conduct on board an aircraft; two months later the Crown Office dropped the charge 'due to insufficient evidence that an offence had been committed'; and by August of the following year he was back in business as a member of the government-appointed Scottish Broadcasting Commission. This swift rehabilitation said much for his essential geniality and his popularity with the political and media classes.

In the general election campaign of 1979, which brought Margaret Thatcher to power and Peter Fraser into parliament as the member for South Angus, the young advocate (as he then was) took part in a BBC outside broadcast of the 'Any Questions' type. I was in the chair that night and remember him as pleasant but unremarkable. Three years later he became solicitor-general for Scotland and in 1989, at the age of 44, he was promoted to lord advocate. Not bad going, all things considered.

But the fulsome tributes should not be allowed to obscure important questions of continuing public interest about his record as Scotland's chief law officer (1989-92).

It was Fraser who was responsible for the investigation into the bombing of Pan Am flight 103; Fraser who issued warrants for the arrest of the two Libyans; Fraser who initiated the prosecution which led to the trial at Camp Zeist. And it was Fraser's opinion that Tony Gauci could be depended upon as the chief prosecution witness – relied upon to the extent that, without Gauci's testimony, the case against al-Megrahi effectively collapsed.

Did Fraser really think that Gauci could be trusted? Or was the lord advocate bounced into the prosecution of al-Megrahi and his co-accused by the US justice department? The architect of the Camp Zeist trial, Professor Robert Black QC, believes that improper influence was exerted on Fraser and that he bowed to it. We shall probably never know.

It was five years after the trial that Fraser, long out of major public office by then, gave an unguarded interview to The Sunday Times in which he cast doubt on Gauci for the first and only time. This is what he said (and never denied saying): 'Gauci was not quite the full shilling. I think even his family would say he was an apple short of a picnic. He was quite a tricky guy. I don't think he was deliberately lying, but if you asked him the same question three times he would just get irritated and refuse to answer.'

These comments scandalised the legal establishment. The lord advocate at the time, Colin Boyd, said that at no stage had Fraser 'conveyed any reservation about any aspect of the prosecution to those who worked on the case, or to anyone in the prosecution service'. Colin Boyd challenged Fraser to clarify his apparent repudiation of Gauci. Fraser declined to rise to the challenge: there was no clarification.

William Taylor, the QC who defended al-Megrahi at his trial, went further: 'A man who has a public office, who is prosecuting in the criminal courts in Scotland, has a duty to put forward evidence based upon people he considers to be reliable. He [Fraser] was prepared to advance Gauci as a witness of truth in terms of identification and, if he had these misgivings about him, they should have surfaced at the time. The fact that he is coming out with this many years later, after my former client has been in prison for four and a half years, is nothing short of disgraceful. Gauci's evidence was absolutely central to the conviction and for Peter Fraser not to realise that is scandalous.'

Lord Fraser had nothing to say publicly about these serious allegations. But in August 2009, long after the fuss had died down, he gave a little-noticed television interview which was concerned mainly with al-Megrahi's release and the justice secretary Kenny MacAskill's handling of it. In the course of the interview he again referred to Tony Gauci, but in rather different terms. I was so struck by what he said that I played it back and took a note of it: 'I have always been of the view and I remain of the view that both children and others who are not trying to rationalise their evidence are probably the most reliable witnesses and for these reasons I think that Tony Gauci was an extremely good witness.'

How could Gauci be 'not quite the full shilling' according to Lord Fraser in 2005, yet 'an extremely good witness' according to the same Lord Fraser four years later? Is there any way of reconciling these conflicting assessments of the chief prosecution witness?

After the death of al-Megrahi, and the Justice for Megrahi committee's clumsy attempts to revive interest in the scandal, it seemed unlikely that the truth about Lockerbie would ever be established. But I suppose some of us were clinging to a faint hope that, in his old age, in some distant memoir serialised by The Sunday Times, Lord Fraser of Carmyllie would reveal all about his pivotal role in the affair. Since, like al-Megrahi, he has failed to reach old age, that hope has now gone. The unanswered questions seem destined to remain just that: unanswered.

Lockerbie Lord Advocate Peter Fraser dies

The death at the age of 68 has been announced of Lord Fraser of Carmyllie QC (Peter Fraser) who was Scotland’s Lord Advocate at the time of the bringing of charges against Abdelbaset Megrahi and Lamin Fhimah for the bombing of Pan Am flight 103. The mentions of Lord Fraser on this blog, extending over the period 14 November 2007 to 14 November 2012, can be accessed here. A statement from the present Lord Advocate, Frank Mulholland QC, can be read here; and a sympathetic appreciation on the website of The Telegraph, the house newspaper of Lord Fraser's political party, can be read here.

Peter Fraser was a genial figure who was popular across the political spectrum in Scotland. What he was not, was a great lawyer or a distinguished Lord Advocate. When Alan Rodger QC -- later House of Lords and UK Supreme Court judge Lord Rodger of Earlsferry -- who was a great lawyer, was appointed Peter Fraser's Solicitor General an official photograph was taken which showed Fraser seated at a desk with a massive tome open in front of him and Alan Rodger looking at it over his shoulder. A version of this photograph was posted in the robing room of the Faculty of Advocates with a bubble coming from Fraser's mouth saying, "What's this, Alan?" and a bubble coming from Rodger's mouth saying, "It's a book, Peter." This, I think accurately, if somewhat cruelly, indicates the Bar's assessment of Peter Fraser's legal abilities.  

As far as the Lockerbie charges against Megrahi and Fhimah are concerned, it is a widely held view that Fraser allowed himself to be bounced into bringing them by the US Department of Justice, which assured him that it had a credible and reliable eye-witness to the suspects' preparation of the bomb on Malta. Fraser took this on trust: whether or not he sought it, he was not given access to the witness in question. The witness was, of course, the Libyan CIA asset Abdul Majid Giaka who testified at Camp Zeist and whose evidence was dismissed by the judges as totally lacking in credibility, largely on the basis of CIA cables (which the prosecution sought to have excluded from evidence) that showed that his CIA handlers regarded him as a fantasist prepared to say virtually anything to keep his US stipend and to gain asylum in the United States.

Peter Fraser's career as a law officer began in 1982 when Sir Nicholas Fairbairn QC MP was compelled to resign as Solicitor General under Lord Mackay of Clashfern as Lord Advocate. There were at that time two young Tory MPs who were advocates -- Peter Fraser and Alexander Pollock. Neither was a QC, but Fraser had passed advocate in 1969 whereas Pollock was not called to the Bar until four years later in 1973. It was probably for this reason that Fraser was preferred for appointment to the vacant office, assuredly not because of superior legal reputation and ability. He became a QC at the same time. On Lord Mackay's resignation as Lord Advocate in 1984, Kenny John Cameron QC was appointed to replace him, with a seat in the House of Lords as Lord Cameron of Lochbroom. Peter Fraser remained as Solicitor General. He lost his seat in the House of Commons in the 1987 general election (as, incidentally, did Pollock) but was confirmed in office. Lord Cameron resigned as Lord Advocate in January 1989, the month following the Lockerbie disaster. Peter Fraser succeeded him and was immediately given a peerage. When in 1992 he became Minister of State in the Scottish Office, his Solicitor General, Alan Rodger, became Lord Advocate.

Labour Government policy on Lockerbie prosecution

[What follows is an exchange that took place in the House of Lords on this date in 1997, shortly after the election of Tony Blair’s Labour government, between the new Lord Advocate, Lord Hardie, and one of his Conservative predecessors, Lord Fraser of Carmyllie:]

HL Deb 25 June 1997 vol 580 cc1571-3

Lord Fraser of Carmyllie asked Her Majesty's Government:

What is their policy concerning the prosecution of those responsible for the murder of those on flight PanAm 103 and of residents of Lockerbie in December 1988.

The Lord Advocate (Lord Hardie) My Lords, the Government's policy in relation to the prosecution of any crime is that those allegedly responsible should be brought before the courts having jurisdiction for such matters in order that the accused may receive a fair trial.

Lord Fraser of Carmyllie My Lords, the noble and learned Lord has not quite answered the Question that I put to him. As the new Administration takes up office and as the noble and learned Lord as the new Lord Advocate takes over responsibility for these matters, it would be helpful if a clear signal were given not only to this country but also to the rest of the world that the policy pursued by previous Lord Advocates will be maintained. Even in the absence of a clear answer from the noble and learned Lord, I hope I may ask him two questions. First, he will appreciate that as the public prosecutor in Scotland in that respect he does not share a collective responsibility with other ministerial colleagues but has a singular and possibly rather lonely duty to determine whether or not there should be a prosecution. Will he guard against any attempt, however well intentioned, to fetter that discretion for foreign policy or trade reasons?

Secondly, if the noble and learned Lord should determine at any stage that there should not be a prosecution in this matter, will he give an assurance that he will explain that to your Lordships' House? It is not just the relatives of those 270 people who died at Lockerbie who would like to know on what evidence the original decision was taken, but those of us who were involved in the prosecution and the original investigation, who have had our integrity impugned as conspiracy theory has piled upon conspiracy theory, would like the opportunity to reflect on how we would wish to take the matter forward.

Lord Hardie My Lords, I assure the House—as I did in my maiden speech—that I intend to guard the independence of the office which I hold. I assure the noble and learned Lord that I shall not allow anyone from any side of the House to fetter my discretion in any way. As regards reaching any decision, as the noble and learned Lord will be aware, I was involved, along with him, in the public inquiry into the Lockerbie disaster. Since taking up office I have had access to much information that was not available to me at that stage and which is not in the public domain. I can assure the House that I am satisfied on the information available to me that there is no reason not to proceed with the petitions. The noble and learned Lord will be aware that the situation is still fluid in the sense that if additional information becomes available any decision would have to be reviewed. I can also assure the noble and learned Lord that should it be decided that no prosecution will take place I shall return to the House and make a Statement to that effect.

Lord Bruce of Donington My Lords, can the noble and learned Lord tell the House whether Her Majesty's Government are in possession of any prima facie evidence indicating the identity of those responsible?

Lord Hardie My Lords, as the noble Lord may be aware, there are petition warrants which name two people. Those warrants were issued on the basis of information available linking them with the disaster which occurred.

A blot on the conscience of Scotland

[What follows is excerpted from an article by Kenneth Roy headlined The Lockerbie cover-up that was published by Newsnet Scotland on this date in 2010:]

The conviction of Megrahi hinged on the testimony of one man, the chief prosecution witness Tony Gauci, a Maltese shopkeeper. Without Gauci there was no case. He was the owner of a clothes shop in Malta called Mary's House. It was alleged at the trial that on 7 December 1988, Megrahi bought some clothes and an umbrella from Gauci's shop. The clothes were then said to have been wrapped around the improvised explosive device that brought down the PanAm aircraft over Lockerbie a fortnight later. This was the only piece of evidence linking Megrahi to the device.

The credibility of Tony Gauci was badly damaged by the man who initiated the prosecution of Megrahi and his co-accused, Lord Fraser of Carmyllie, in a remarkable newspaper interview four years ago. The words attributed to him – he has never denied using them – were:

'Gauci was not quite the full shilling. I think even his family would say he was an apple short of a picnic. He was quite a tricky guy. I don't think he was deliberately lying but if you asked him the same question three times he would just get irritated and refuse to answer.'

When the then Lord Advocate, Colin Boyd, read this assessment of the Crown's star witness, he was sufficiently moved to ask Lord Fraser to clarify his view of Gauci's credibility; others, including Tam Dalyell and Megrahi's counsel, spoke out more strongly. If Lord Fraser did clarify his view, the world remained unaware of the clarification. Last August, however, Lord Fraser gave a revised opinion in a little-noticed television interview mainly concerned with Megrahi's release and the justice secretary Kenny MacAskill's handling of it. I noted down his reply to a question about Gauci:

'I have always been of the view and I remain of the view that both children and others who are not trying to rationalise their evidence are probably the most reliable witnesses and for that reason I think that Tony Gauci was an extremely good witness.'

What the use of the phrase 'children and others' was intended to convey about Gauci, and how this statement could be compared to Lord Fraser's earlier view of the witness, was not pursued as an issue (except in this magazine). Conveniently, perhaps, all eyes were on Megrahi himself, the 'triumphant' return to Tripoli, and the perceived shortcomings of Kenny MacAskill. Tony Gauci and Lord Fraser of Carmyllie pretty well disappeared off the radar.

Extremely awkward questions remain unanswered, however, and will continue to haunt the Lockerbie case so long as there is an official conspiracy of secrecy. Specifically:

Were the clothes sold to Megrahi?

Were they sold on the date alleged?

As a result of its investigation, the Scottish Criminal Cases Review Commission formed the view (a) that there was 'no reasonable basis' for the court's judgement that the purchase of the clothes from Mary's House took place on 7 December and (b) that the clothes were bought on some unspecified date before then. As 7 December was the only date when Megrahi was in the area, it follows (a) that they could not have been sold to Megrahi and (b) that the case against Megrahi collapses.

This much we know. What we do not know – and what we seem to be further away than ever from knowing – is the nature of the 'additional evidence' which so convinced the commission that the court's judgement was wrong; and, more disturbing still, why this evidence was not made available to the court of Scottish judges sitting in the Netherlands.

In 2007, the commission concluded that it had identified six grounds where it believed that 'a miscarriage of justice may have occurred and that it is in the interests of justice [my italics] to refer the matter to the court of appeal'. Since there is no possibility of a referral to the court of appeal, and no prospect of the commission's report being published, we have the worst possible outcome – lingering doubt and suspicion, a complete lack of closure, and a continuing affront to the families of all those who died.

I wrote here last August: 'Judicially, the case is at en end. We are therefore left to assume that the interests of justice will never be served. There is a blot on the conscience of Scotland and it is hard to see how it will ever be eradicated'. It is harder still today.

Three dead men and their secrets

[This is the headline over an article by Kenneth Roy in today’s issue of the Scottish Review. It reads in part:]

Three of the key figures in the tangled politics of Lockerbie have now died within four years of each other: Abdelbaset al-Megrahi, the only person ever to have been convicted of the bombing (died 2012), Lord Fraser of Carmyllie, the Lord Advocate who initiated the criminal proceedings against al-Megrahi (2013) and Tony Gauci, the chief prosecution witness (a few days ago). To say that all three left unanswered questions would be one of the under-statements of our time.

Gauci was the owner of a clothes shop in Malta called Mary’s House. It was alleged that on 7 December 1988, a fortnight before the atrocity, al-Megrahi bought some clothes and an umbrella from his shop, that the clothes were wrapped round the device which brought down flight 103, and that al-Megrahi, a former head of security at Libyan Arab Airlines, collaborated with an official of the airline to breach the security at Luqa Airport and get the device on the first stage of its journey as an interline bag to Frankfurt.

But how reliable was Gauci? His credibility took a battering four years after the trial in a remarkable newspaper interview with Lord Fraser. The words attributed to Fraser – he never denied using them – were: 'Gauci was not quite the full shilling. I think even his family would say he was an apple short of a picnic. He was quite a tricky guy. I don’t think he was deliberately lying, but if you asked him the same question three times he would just get irritated and refuse to answer’.

When his successor as Lord Advocate, Colin Boyd, read this assessment of the Crown’s star witness, he asked Fraser to clarify his opinion of Gauci; others, including Tam Dalyell and al-Megrahi’s counsel, William Taylor QC, spoke out more strongly. If Fraser did clarify his opinion, the world was not made aware of it at the time.

Three years later, however, he gave Gauci a friendlier character reference in a television programme about the Lockerbie case: 'I have always been of the view, and I remain of the view, that both children and others who are not trying to rationalise their evidence are probably the most reliable witnesses and for that reason I think that Gauci was an extremely good witness’.

How this statement could be reconciled with his earlier disobliging view of the witness, Fraser did not divulge. But the remarks received little attention, for the story had moved on dramatically: al-Megrahi was now on his way home to Tripoli, released from a Scottish prison on compassionate grounds, having been diagnosed with terminal cancer, after serving eight years of a life sentence for mass murder.

Fraser’s re-evaluation of Gauci as 'an extremely good witness’ looked ridiculous on close scrutiny. When the Scottish Criminal Cases Review Commission had a detailed look at the case, it concluded that there was 'no reasonable basis’ for the judges’ opinion that the purchase of the clothes from Mary’s House took place on 7 December; the commission decided that they have must have been bought on some unspecified date before then.

This was an encouraging finding for the many defenders of al-Megrahi (myself included) who believed that 7 December was the date of his only visit to Malta. But in 2014, in a documentary for American television, Ken Dornstein, whose brother died at Lockerbie, produced evidence which undermined the case for al-Megrahi’s innocence. During 15 years of patient investigation, Dornstein discovered that al-Megrahi had been in Malta in the weeks leading up to the bombing, and that he had company: a Libyan bomb-maker, Abu Agila Mas’ud, who was among those who greeted him on his return to Libya. (...) [RB: It was never disputed that Megrahi had been in Malta earlier in 1988. What was disputed -- and what has never been proved -- is that he was there on 23 November, the other possible purchase date. On the Dornstein films, see John Ashton here and Kevin Bannon here.]

A number of fascinating secrets now go to the grave and seem destined to stay there. We shall never know what Peter Fraser really thought of the witness who was to prove so vital to his successful prosecution. We shall never know how much Tony Gauci was paid by the American authorities in return for his helpful evidence (or how much the Scottish authorities knew of the deal). And we shall never know what al-Megrahi was doing in Malta with Mas’ud if he was not there to facilitate the planting of the device.

There is a fourth 'we shall never know’ that can be stated with a sense of growing probability: that with the passage of time, and as the important players in the saga continue to fall off their perches, we shall never know the truth about Lockerbie.

Rewards for Justice

The Sunday Post, the Scottish Sunday newspaper with the largest readership, published the following article by Adam Docherty about payment to witnesses in the Lockerbie trial on 13 January 2008:

'THE US justice department paid for evidence that helped convict Abdel Basset Ali al-Megrahi for the Lockerbie bombing.

'With the next hearing in Megrahi's High Court Appeal due to take place next month, the admission casts a dark shadow over testimony at the original trial -- and the safety of the conviction.

'The Washington DC-based 'Rewards for Justice' organisation boasts that it has paid out more than 72 million dollars to over 50 people who have provided information that prevented international terrorist attacks or have brought to justice those involved in prior acts. Included on its website, in a list of those brought to justice, is Megrahi. Due to a strict policy of confidentiality Rewards for Justice will not name the witnesses nor divulge the exact amount paid to them.

'In June last year the Scottish Criminal Cases Review Commission referred Megrahi's case back to the Court of Appeal after a three-year inquiry. They found six areas of concern and are believed to have uncovered a £2-million reward paid by the CIA to key witness, Maltese shopkeeper Tony Gauci.

'Gauci was the only witness to link Megrahi directly to the bomb, and was therefore instrumental in convicting him on 31 January 2001. Gauci told the trial that Megrahi bought clothes in his shop, which were later used to wrap the bomb.

'At the trial, Gauci appeared uncertain about the exact date he sold the clothes in question, and was not entirely sure that it was Megrahi to whom they were sold. Nonetheless, Megrahi's appeal against conviction was rejected by the Scottish Court in the Netherlands in March 2002. Five years after the trial, former Lord Advocate, Lord Fraser of Carmyllie, publicly described Gauci as being "an apple short of a picnic" and "not quite the full shilling".

'Dr Jim Swire, whose daughter Flora was killed in the 1988 bombing, is convinced that Megrahi is innocent. Yesterday he said that such huge sums offered to witnesses could encourage them to perjury.

'"Many jurists would consider that promises of money to secure 'evidence' from any individual do not accord with the principles of justice," he explained.

'"It is the timing of such promises rather the payments themselves that determine whether the 'evidence' is likely to be degraded. To many such witnesses such sums would alter their lives.

'"And such promises of money, if concealed from court -- or perhaps divulged only to prosecution -- could be considered a deliberate perversion of justice.

'"Witnesses are supposed to serve the truth. But the old Scots adage holds firm here - 'He who pays the piper calls the tune'.

'"This document gives some idea of the scale of the payments. It also removes any doubt as to whether payments were, indeed, made in this case."

The newspaper also published an article containing Dr Swire's detailed reactions to the revelations. These included the following:

'I entered the Zeist trial believing (as the British Foreign secretary had told us) that there was conclusive evidence of Libya's guilt, and none concerning the guilt of any other nation.

'This was the reason that we, the UK relatives, had made every conceivable effort, including three visits to Colonel Gaddafi, to persuade him to allow his citizens to undergo trial under Scottish criminal justice.

'Within days of the start of the trial at Zeist it became clear that fundamental requirements for the collection of evidence for a criminal trial had been breached, when the court was told that a suitcase, belonging to one of the US passengers had been removed from the crash site, by persons unknown, cut open, and then returned for the Scottish searchers to find, with some of its contents put back and even labelled with the name of the owner.

'The court accepted that the rectangular cutting into that suitcase could not have been a result of the explosion, but appeared unfazed by the possible implications for other items allegedly recovered as evidence. This had intense relevance later in the case to the question of a fragment of timer circuit board, the key forensic 'link' to the credibility of the bomb ever having started from Malta.

'There was evidence of the presence of numerous unidentified US agents roaming the site at a very early stage - a situation which the resources of the Scottish police could never have been expected to anticipate or control.

'From this unhappy start, the picture grew of how certain intelligence agencies had contributed to the assembly of much of the evidence. Intelligence services act in support of the perceived advantage of the countries for which they work: this may or may not be consistent with seeking the truth.

'Remember that for this trial there was no jury.

'Now, as you report, we have the proud exhibition by 'Rewards for Justice' in Washington DC of their use of 'more than 72 million dollars' in persuading witnesses to give evidence in terror-related cases. Former Lord Advocate, Lord Fraser of Carmyllie's, post trial assessment of the key witness, Mr Gauci, as being 'one apple short of a picnic' was not vouchsafed to the court, but can only serve now to emphasize the possibility that an offer of cash might have affected the evidence that Mr Gauci was willing to give.

'As a layman, I emerged from the Zeist hearings convinced that the verdict should never have been reached.'

Scottish Parliament Written Answers

24 September 2010
Christine Grahame (South of Scotland) (SNP): To ask the Scottish Executive whether it will publish any information it holds related to payments reportedly made by US authorities to key witnesses either before or after the trial of Mr Abdelbaset Ali Mohmed Al Megrahi, specifically payments to Tony Gauci, in relation to evidence he gave into the bombing of Pan Am Flight 103 over Lockerbie.
(S3W-35942)
Rt Hon Elish Angiolini QC:
The only forum in which the Scottish Government or the Crown Office and Procurator Fiscal Service (COPFS) can make public any information connected to witnesses involved in the investigation and prosecution of the Lockerbie bombing is in judicial proceedings in Scotland.

Christine Grahame (South of Scotland) (SNP): To ask the Scottish Executive whether it is aware of comments by the former Lord Advocate, Lord Fraser of Carmyllie, who has stated publicly in a television interview for Dutch television in 2009 that he was not aware that the timer fragment known as PT35 was sent to the United States of America for examination by FBI officials and that he would have opposed such transportation of this fragment on the basis of concerns that it might be lost in transit or provoke accusations that it had been tampered with.
(S3W-35943)
Rt Hon Elish Angiolini QC:
I am aware of comments reported to have been made by my predecessor, Lord Fraser of Carmyllie.

The fragment of electronic timer recovered from the wreckage of flight Pan Am 103, known as PT35, was taken to the United States of America by Scottish police officers and a British forensic scientist in June 1990 as part of the investigation into the Lockerbie bombing. The fragment remained in the custody and control of the Scottish police officers and the British forensic scientist during the visit to the United States and was subsequently identified as having come from an electronic timer manufactured by a Swiss company, MEBO, to the order of the Libyan intelligence service.

Christine Grahame (South of Scotland) (SNP): To ask the Scottish Executive whether it is aware of the reported comments of former FBI scientist Frederic Whitehurst implying that the FBI laboratory in Washington DC may constitute an additional crime scene with regard to the bombing of Pan Am Flight 103 over Lockerbie. (S3W-35944)
Rt Hon Elish Angiolini QC:
There is no evidence of any criminal act having been carried out in relation to any of the forensic evidence in the Lockerbie investigation.

A fragment of electronic timer recovered from the wreckage of flight Pan Am 103, known as PT35, was taken to the FBI laboratory in Washington DC by Scottish police officers and a British forensic scientist in June 1990 as part of the investigation into the Lockerbie bombing. The fragment remained in the custody and control of the Scottish police officers and the British forensic scientist during the visit to the United States and was subsequently identified as having come from an electronic timer manufactured by a Swiss company, MEBO, to the order of the Libyan intelligence service.

‘Al-Megrahi defence knew bomb fragment was sent to US’

[This is the headline over a report in today's edition of The Times. It reads in part:]

A senior FBI investigator involved in the Lockerbie inquiry has entered the controversy over a vital piece of scientific evidence which secured the conviction of the Libyan bomber.

Richard Marquise, now retired, told The Times that a tiny bomb fragment at the heart of the prosecution case had been taken out of Scotland in the course of the investigation, and brought to Washington, where it was examined in the bureau’s laboratory. He said he believed it had also been taken to Germany His view appears to contradict a claim by Lord Fraser of Carmyllie, then Lord Advocate, who told a television documentary that to his knowledge, the fragment had never been outside Scotland. Lord Fraser, who led the prosecution, told a Dutch television crew that had evidence been sent abroad, the case against Abdul Baset Ali al-Megrahi would have been vulnerable.

Yesterday, however, Mr Marquise said no one denied that the fragment, part of the bomb’s timing device, had been examined by Scottish officials in the FBI laboratory in Washington, or that it had been scrutinised by experts in Germany. He added that these facts had been known by the defence team at the trial of al-Megrahi, who was convicted of planting the bomb aboard Pan Am flight 103, which exploded over Lockerbie in December 1988, killing 270 people, and dismissed the controversy as a “non-issue”.

“I do know it was never in the possession of the FBI but these Scottish/British officials examined PT-35 [the fragment] in the FBI lab in Washington,” he told The Times. “No one has ever tried to hide that fact.”

That information was not, apparently, known to Lord Fraser. Asked by the television team whether the fragment had been taken to the US, Lord Fraser responded: “Not that I am aware of.” He added: “What would have gone through my mind is ... could this evidence get lost, or damaged or tampered with? No, no; I would want to keep everything so that there can be no accusations at a trial that in some way [it] has been fiddled with.”

The controversy erupted after the Crown Office responded to a freedom of information request from Christine Grahame, the SNP MSP for South of Scotland, confirming that the fragment had been sent for analysis to the Siemens company in April 1990.

Ms Grahame said Lord Fraser “did not know and would not have allowed this evidence to be taken out of Scottish jurisdiction and control”.

[I have now lost count of the number of different accounts of the movements of this item of evidence that have been given by Richard Marquise and Detective Chief Superintendent Stuart Henderson. Tracing and itemising them might be a nice research project for an enterprising law or journalism student.

Mr Marquise has e-mailed me the following response:

'I will try and make it simple for you---

'Marquise: told Levy in 2008 that the fragment came to US in custody and control of Scottish police/British forensic officials. Never out of their custody or control.
When he “cornered” me at Arlington, he said the Lord Advocate told him it never came to US. I told him there what I told him earlier in 2008 was what I thought the truth to be but perhaps I was mistaken (I did not see the fragment when it came to US in June 1990) I later clarified in an email that my first statement was correct.

'Henderson: as far as I know, the microphone in his face at Arlington in December 2008 was the first time Mr. Henderson ever said anything in public about Lockerbie. What he said was it was never in “US control.”

'In his official statement to prosecutors before trial, he acknowledged that it had traveled to the US for examination.

'Unfortunately, some things which happened over 20 years ago needed to be reflected upon. We are all aging and our recollections may not be perfect. However, I know one thing—none of us ever “fiddled with,” “tampered,” “changed,” “altered” or “manufactured” any evidence in this case to include PT-35.

'My brother once owned a football. He was so afraid it would get ruined, he kept it in the closet and never used it. It suffered “dry rot” and was eventually never useable. The same could be said about PT-35. Should police officials never shared its existence with anyone else, it might never have been identified. Try as they might, 6 months, 17 countries and 55 separate company visits failed to determine what it was. It was the sharing of the photograph and eventually the lab comparison which identified it.

'To listen to some in Scotland, this case should have been conducted ONLY by Scots without outside interference. It was only through the sharing of information that strides were able to be made to identify who was responsible for Lockerbie—despite what so many people do not want to believe. The sharing of information was vital to the Lockerbie case and is vital today as we try and prevent horrible acts of terrorism and other crimes.

'Those of us who have never taken money from anyone doing business in Libya are comfortable with that we did. Can you say the same? In the book, “The Price of Terror,” you are quoted as saying that you tried to resolve the (Lockerbie) deadlock at the behest of “a group of British businessmen whose desire to participate in major engineering works in Libya were being impeded by the UN sanctions.” Perhaps YOU were misquoted. Would you also like to get some law students on that as well?'

I am, of course, used to snide remarks to the effect that my stance on Lockerbie is due to my having been paid (which I have always thought a somewhat odd criticism to make of a lawyer). Here, from a forthcoming book, is the true account of how I came to become involved in the Lockerbie issue:

'I first became involved in the Lockerbie affair in January 1993. I was approached by representatives of a group of British businessmen whose desire to participate in major engineering works in Libya was being impeded by the UN sanctions. They had approached the then Dean of the Faculty of Advocates (the head of the Scottish Bar) and asked him if any of its members might be willing to provide advice to them -- on an unpaid basis! -- on Scottish criminal law and procedure in their attempts to unblock the logjam. The Dean of Faculty, Alan Johnston QC (later Court of Session judge Lord Johnston), recommended me. The businessmen asked if I would be prepared to provide independent advice to the government of Libya -- again on an unpaid basis -- on matters of Scottish criminal law, procedure and evidence with a view (it was hoped) to persuading them that their two citizens would obtain a fair trial if they were to surrender themselves to the Scottish authorities. There was, of course, never the slightest chance that surrender for trial in the United States could be contemplated by the Libyans, amongst other reasons because of the existence there of the death penalty for murder.']

Lockerbie evidence planted or "improved"? "I don't know" said Lord Advocate Fraser.

What follows is an item posted on this blog six years ago on this date:

Peter Fraser pins colours to the mast

In an article in The Times, the Lord Advocate at the time that charges were brought against Abdelbaset Megrahi and Lamin Fhimah for the destruction of Pan Am 103, Lord Fraser of Carmyllie QC, expresses his confidence in the evidence that led to the conviction of Megrahi. Here are excerpts:

'Lord Fraser does not discount the involvement of other states, but he points out that no definitive evidence has been produced to link them to the attack. The Libyans, on the other hand, were traced through the diligence of Scottish detectives, who managed to identify the manufacturers of clothing found in the suspect suitcase that had held the bomb. By proving that the clothing had been bought in Malta, and then establishing that the purchaser was al-Megrahi, they laid the foundations of the Crown case. “For me that was the most significant breakthrough,” Lord Fraser says now.'

'Tam Dalyell, the former MP, has argued that the CIA may have known about the attack beforehand. Lord Fraser rejects that. “I told Tam Dalyell: if there was a conspiracy, then I am in it up to the neck. I have to be involved. The only other possibility is that I have been so naive that bits of evidence have been planted, and I have swallowed it hook, line and sinker. But four other Lord Advocates have also examined the evidence and they have all concurred with it.”'

On the issue of the provenance of the MST-13 circuit board fragment which was crucial to the establishment of a link between Libya and the destruction of the aircraft, Lord Fraser hedges his bets somewhat:

'The discovery of a fragment of circuit board from a timer made by a Swiss company with links to Libya was critical to the prosecution. But accounts of how, where and by whom it was found varied. The original fragment was found several miles from the wreckage, and some weeks after the disaster.

'It was not until very much later that the CIA claimed to have identified it and matched it with a circuit board manufactured by Mebo of Zurich, a company run by Edwin Bollier, who had supplied timers to the Libyan Government. Some experts have argued that the find was just a bit too convenient to the US investigators, since, by targeting the Libyans, they could avoid falling out with Iran and Syria, important allies at the time of the Gulf War. So could the CIA have planted the evidence? “I don’t know,” says Lord Fraser. “No one ever came to me and said, ‘Now we can go for the Libyans’, it was never as straightforward as that. The CIA was extremely subtle. For me the significant evidence came when the Scottish police made the connection with Malta.” Pressed for his own view, he cites a Scottish murder case, that of Patrick Meehan, in which, it was alleged, the prosecution case had been “improved” by the planting of evidence. Was there a similarity? “I don’t know,” he said again, “but if there was one witness I was not happy about, it was Mr Bollier, who was deeply unreliable.”'