Friday, 19 September 2014

Only a full inquiry can unravel the truth

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

Misguided Magnus

For all Abdul Baset Ali al-Megrahi's protests about the fragility of the prosecution case against him, there are three crucial facts to be borne in mind in reading these documents. [RB: Documents released by the lawyers representing Megrahi in the appeal abandoned by him to secure his repatriation to Libya].

First, there appears to be nothing new here. It is evidence that has already been tested and rejected in the course of two court hearings: the original trial and his first appeal.

Secondly, what al-Megrahi presents is, inevitably, only one side of the case. It would have been challenged point by point in front of three High Court judges if his next appeal had gone ahead. By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected.

Third, if he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead.

Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison. Indeed, even at the original trial, he declined to give evidence in his own defence. That severely undermines his attempt to demonstrate that the prosecution case was flawed.

He now argues that the evidence against him was circumstantial and built on inference. But circumstantial evidence is very often at the heart of a prosecution case, and in Scottish law, an extra strand of corroborative proof is required before the evidence is accepted, and this would have happened in the al-Megrahi case.

What we are now asked instead to believe is that experienced judges and counsel ignored the custom and practice of Scottish law in the course of two full trials, and waved through unconvincing circumstantial evidence in order to ensure a conviction.

That is not only inherently improbable, it is insulting to the Scottish legal system and the lawyers who were involved in it. Only a full inquiry can unravel the truth, rather than the partial version we have been presented with here.

[The above is the full text of a comment in today's edition of The Times by Magnus Linklater, the paper's Scottish Editor. Apart from the very last sentence of the article, everything that Mr Linklater says is either factually incorrect or demonstrably misguided.

First: the released material has not been tested and rejected in two court hearings (the original trial and the first appeal). The released material advances the contentions that the evidence heard at the original trial was (a) insufficient in law to warrant a guilty verdict and (b) that no reasonable court, on that evidence, could have convicted Abdelbaset Megrahi. These contentions were not advanced at the Zeist trial or at the first appeal. As far as that appeal is concerned, the five judges stated in paragraph 369 of their Opinion:

“When opening the case for the appellant before this court Mr Taylor [senior counsel for Megrahi] stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence. He also stated that he was not seeking to found on section 106(3)(b) of the 1995 Act [verdict unreasonable on the evidence]. His position was that the trial court had misdirected itself in various respects. Accordingly in this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment. We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.”

The true position, as I have written elsewhere, is this:

"As far as the outcome of the appeal is concerned, some commentators have confidently opined that, in dismissing Megrahi’s appeal, the Appeal Court endorsed the findings of the trial court. This is not so. The Appeal Court repeatedly stresses that it is not its function to approve or disapprove of the trial court’s findings-in-fact, given that it was not contended on behalf of the appellant that there was insufficient evidence to warrant them or that no reasonable court could have made them. These findings-in-fact accordingly continue, as before the appeal, to have the authority only of the court which, and the three judges who, made them."

Second: "By abandoning that legal process and returning to Libya, al-Megrahi has sacrificed the opportunity of having his evidence properly heard in a forum that would have been recognised and respected. (...) [I]f he was so sure of the strength of his case, why was he not willing to see the appeal go ahead in his name, even though he himself was absent? The legal position is that the accused person does not need to be present for an appeal to be heard - he may even be dead. Yet al-Megrahi dropped his appeal in order to ensure his speedy release from Greenock prison."

Abdelbaset Megrahi was terminally ill. He had only a few months to live. His absolute priority was to return to his homeland to die surrounded by his family. Two ways of achieving this were available: prisoner transfer and compassionate release. The first required that there be no ongoing legal proceedings (like his second appeal); the second did not. Applications for repatriation were made under both mechanisms. Megrahi did not know which, if either, of the mechanisms would be successful, and the Cabinet Secretary for Justice said from the outset that there would be no nods or winks. In order to keep open the possibility of benefiting from prisoner transfer Megrahi had to abandon his appeal. At the end of the day, Kenny MacAskill opted for compassionate release. But until it actually happened, Megrahi did not, and could not, know that. The decision to abandon was effectively forced upon him. 

And, of course, it would all have been unnecessary if the Crown Office, the Advocate General for Scotland (representing the UK Foreign Secretary in his public interest immunity claims) and the Appeal Court had not reduced the progress of the second appeal to a pace that would have shamed a self-respecting snail.

Third: Megrahi is not complaining that the evidence against him was circumstantial. Everyone accepts that a conviction can properly be obtained on evidence which is wholly circumstantial. The true point being raised is that for proof beyond reasonable doubt to be achieved in a case based wholly on circumstantial evidence, the incriminating inferences that the court is asked to draw from the evidence must be the only reasonable inferences open on that evidence. It is the failure of the Crown to reach (or even approach) this standard at the Zeist trial that Megrahi is complaining about.]

The sorry saga of Magnus Linklater’s writings over the years on the Megrahi case can be followed here.

Thursday, 18 September 2014

UK Government blocks release of evidence to Megrahi lawyers

What follows is an item posted on this blog six years ago on this date. On this historic day I do not expect anyone, at least in Scotland, to read it.

Court rules Lockerbie timer details to stay secret

This is the headline over an article by Lucy Adams in The Herald. The story reads in part:

'The Appeal Court in Edinburgh has decided to appoint a special defender to view confidential documents thought to contain vital information about the electronic timer that detonated the Lockerbie bomb.

'The decision follows an unprecedented hearing, held behind closed doors, at which the UK Government argued that revealing the documents would compromise 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 behalf of the defence team of Abdelbaset Ali Mohmed al Megrahi, the Libyan convicted of the bombing.

'This special defender would then argue which parts of the document should be published - although judges would make the final decision about how much, if anything, should be revealed.

'So far the court has not published its decision, but Foreign Office minister Kim Howells has written a letter confirming that the court 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 it is planning an appeal to the Privy Council, arguing that the move will violate his human rights.'

The full article can be read here.

Wednesday, 17 September 2014

Megrahi's release and the West's intervention in Libya

[The following are excerpts from an interesting long article published today on the ConservativeHome website by John Baron MP:]

Three years on, it is clear the West’s Libyan intervention has been a disaster. A vicious civil war, growing civilian casualties and refugees, and warring tribal and religious groups have gone largely unnoticed in Britain. Things are so bad that the Libyan Parliament is now taking refuge in a Greek car ferry in Tobruk’s famous harbour. As with most of our interventions over the last decade, it was never meant to turn out like this. As we once again contemplate intervention in Iraq and Syria, Libya offers chastening lessons. (...)

We were told that Western intervention would avert an humanitarian catastrophe and prevent genocide in Benghazi – ironically now where the Islamists are arguably at their strongest. At the time of the vote, many of us in Parliament pointed out that not enough thought had been given to the challenges post-Gaddafi, to the various tribal and religious factions that would surface, and the knock-on effects beyond Libya’s borders. Some of us pointed to regional allies, who were more than capable of exercising control of the skies over Benghazi – after all, the West had been selling them tens of billions of pounds of kit for this very purpose.

Some of us also suspected the real motive was one of regime change. US anger following the Scottish release of Abdelbaset al-Megrahi was palpable. In February 2011, when the Foreign Affairs Select Committee met our American counterparts in Washington, the only topic they wished to discuss was not Afghanistan or Iraq, but the decision to release the Lockerbie bomber. We would not have been alone in picking up the negative vibes.

However, whatever the West’s motives, UN Security Council Resolution 1973 authorised the protection of civilians ‘by all means necessary’ other than a ‘foreign occupying force’. On the strength of this wording, and reassurances from London, Paris and Washington that regime change was not the objective, Russia and China did not use their Security Council vetoes. (...)

If regime change was the objective, then perhaps Libya post-Gaddafi was never really going to be a concern. However, if one accepts the West’s declared motive, then once again it has been found wanting.

A lack of rigorous assessment as to the difficulty of removing Gaddafi; of post-Gaddafi planning; of understanding the various components and parties in theatre, and of the consequences, both in the vast swathes of territory in the south of the country and beyond Libya’s borders – these were just some of the errors committed: a lack of local knowledge perhaps being the common denominator. Years of cuts to the FCO budget, and the consequent dilution of skills, was a factor.

Libya is a good example of how not to intervene. Knocking the door down is always going to be the easy part. The post-intervention planning was once again the Achilles’ heel. As the West once again stands poised to intervene in Iraq and Syria, such lessons must be heeded. The consequences of getting it wrong there could be much greater.

The fiction of Crown Office integrity in Lockerbie prosecution

[On this date two years ago, I reproduced on this blog an article written by Dr Jim Swire for Scottish lawyers’ magazine The Firm. It reads as follows:]

Lockerbie and Hillsborough: the deliberate diversion of blame

[This is the headline over an article by Dr Jim Swire published today on the website of Scottish lawyers’ magazine The Firm.  It reads as follows:]

Dr Jim Swire writes exclusively for The Firm, following the revelations in the Hillsborough papers, and sees the thread linking the common behaviour of the legal and political institutions that bind the Pan Am 103 affair with the tragic deaths at Hillsborough.

In the world confrontation between the terrorists and the developed communities of the West, the complex structures that regulate our societies have intelligence, high technology, well orchestrated military might and the precepts and respect of our peoples for the rule of law as their main resources.

From the nature of terrorism and the front line responses of Western intelligence springs a great temptation: to use the innately secretive culture of intelligence to react to terrorism in ways which their defended populations might denounce, were they only privy to them. 'Extraordinary rendition' is a good example of this. Yet reliance upon secrecy from their own populations can only ever be a temporary protection for those who overstep the line and use that privileged secrecy in ways that defy the rule of law, which they ostensibly support.

To cross that line and use our State resources in ways that are illegal is in the end to hand a moral victory to the terrorists. To divert blame away from the actual perpetrators is to protect them and to increase the chances of them striking again. The American response to terrorism has been profoundly different from the British. America has turned to intelligence/military responses in 'the war on terror'. Britain has striven to use intelligence/criminal law. Except where our leaders have got carried away by enthusiasm for the 'special relationship' with the US and dragged us, the people protesting, into military intervention in Iraq and Afghanistan.

But State pressure upon our law to produce politically desired convictions has produced terrible distortions of that law such as detention without trial and the warped trials of alleged terrorists such as the Maguire and other IRA related cases.

It is my belief that in the case of Lockerbie the law of Scotland has been subsumed into the priorities of American foreign policy.

Douglas Hurd, a man deserving of great respect for his personal intelligence and integrity has said to Tam Dalyell and Robin Cook, referring to Lockerbie: "I do ask you two to believe that as Foreign secretary I cannot tell the Scottish Crown Office (which was in charge of the Lockerbie case) what to do, nor does the Foreign Office have detailed access to evidence which they say they have. You must understand that law officers really are a law unto themselves."

Yet I have come to believe over the past 25 years that not only did the US manipulate the Scottish criminal legal process, but that the Scottish Crown Office has ever since, fought a battle to maintain the fiction that it acted with integrity throughout the legal prosecution process.

In so doing they are in effect protecting the perpetrators of the dreadful terrorist massacre of the innocents that was Lockerbie in 1988, and damaging positive responses to better protect the future (such as making it a criminal offence for an airport not to report and take immediate appropriate action over break-ins perhaps?). I believe that in the long run it will be less damaging to the reputation of the West, and certainly for my favourite country, Scotland, to address these issues, and to take corrective action ourselves for the future, rather than allow our failures to be eventually exposed at the bar of history.

In a democratic society the more citizens who assess such matters for themselves, the greater is likely to be the integrity of the decisions which their politicians must eventually take to resolve the issues.

[A much longer and more detailed piece by Dr Swire can be read in the same blogpost from 2012.

Aspects of the conduct of the Crown Office in the Lockerbie prosecution form the basis of some of Justice for Megrahi's allegations of criminal misconduct in the Lockerbie investigation, prosecution and trial that are currently under investigation by Police Scotland.]

Tuesday, 16 September 2014

Scotland's shame, the failure to resolve the disgrace that is the Lockerbie prosecution

[What follows is excerpted from a letter from Iain A J McKie published in today’s edition of The Herald:]

I have a great deal of sympathy with your correspondent Neil McPherson (Letters, September 13) and can understand his using the Scottish Government's track record to fuel his cynicism about independence resulting in a fairer society.

Like him I believe that to date our Government has proved to be a somewhat negative force in terms of social justice in its favouring of the system at the expense of the individual. In support of his argument he highlights regressive measures like the removal of the need for corroboration, unaccountable policing and Scotland's shame, the failure to resolve the disgrace that is the Lockerbie prosecution. To that I could add the Government's increasingly incestuous relationship with the Crown Office and police which has resulted in what Lord McCluskey has referred to as the "blurring of important boundaries" and the arrogant and obstructive "wha's like us"' approach to human rights principles espoused in the Supreme Court and European Court.

As a justice campaigner and supporter of independence, however, I have been encouraged to approach the referendum confident that a vote for independence will result in a new Scottish constitution which not only enshrines these principles of justice and equality but produces a government committed to that cause. (...)

Above all we require visionary voices offering escape from the old systems and self-serving values which have suffocated dissent and devalued justice. We need to develop the political will to ensure that our justice system and its institutions serve justice for all and not the self-interest of a minority elite.

I would be the first to accept that my Yes vote will be a considerable act of faith and that difficult times lie ahead, but at least it echoes Nelson Mandela's hope: "May your choices reflect your hopes, not your fears."

An American conservative on Scottish independence, Megrahi and Lockerbie

[What follows is an excerpt from an article by San Francisco Chronicle conservative columnist Debra J Saunders published yesterday on the newspaper’s SFGate website:]

In June, President Obama spoke against an “aye” vote when he spoke of America’s “deep interest in making sure that one of the closest allies that we will ever have, the United Kingdom, remains strong, robust, united and an effective partner.” Obama should have used stronger language, as he will need a strong United Kingdom in the war (yes, war) against the Islamic State of Iraq and the Levant.

It can be no accident that a masked Islamic State henchman engaged in the brutal beheading of aid worker David Haines, a Brit and a Scotsman, as the big vote looms. [Cabinet Secretary for Justice Kenny] MacAskill has told Sky News that a “yes” vote would bring the very liberal Scotland freedom from decisions made under the coalition government of conservative Prime Minister David Cameron — that is, freedom from British defense spending and any wars into which the United Kingdom is drawn.

But it’s not that easy to opt out of war when terrorists are willing to export it — as MacAskill well should know. In 1988, Pan Am Flight 103 exploded over Lockerbie, Scotland, killing 270, including 11 Scots on the ground. A Scottish court found Libyan intelligence agent Abdel Basset Ali al-Megrahi guilty. He received a life sentence that left him eligible for parole after 20 years, but served a mere eight years in a Scottish prison. On the dubious ground that prostate cancer left Megrahi with less than three months to live, MacAskill granted Megrahi “compassionate” release in 2009. The son of the late Moammar Khadafy flew the terrorist home to a hero’s welcome on a tarmac in Tripoli, where Scotland’s worst mass murderer lived into 2012. [RB: That son's account of the "hero's welcome" can be read here.] Salmond explained, “Sometimes someone has to break the cycle of retribution with an act of compassion.” It’s a shame his Scottish National Party doesn’t feel the same way about Great Britain.

Monday, 15 September 2014

The Scottish independence referendum, Lockerbie and Megrahi

[What follows is a brief extract from a long article about the Scottish independence referendum on the widely-followed US news and comment website News Junkie Post by John Goss, one of the site’s editors:]

Should the Yes campaign succeed, Alex Salmond, the Leader of the Scottish National Party (SNP) and Member of the Scottish Parliament, will almost certainly head the new government. Mr Salmond appears to be quite an establishment figure. Like David Cameron and all prime ministers since the Lockerbie bombing, Salmond has opposed a public inquiry into a tragedy for which Abdelbaset al Megrahi was blamed and imprisoned when it is widely believed today that Megrahi was in no way involved. Though Salmond will get his assured place in history with a Yes vote, he will not be head of parliament indefinitely, and one day the Scottish people might choose to elect another Kier Hardie to bring real justice to the impoverished.

[A report in today’s edition of The Herald on the referendum voting intentions of people in the traditionally Labour stronghold of Kilmarnock contains the following:]

Marie Clowes, 56, is a good example of the kind of Labour voter who is voting "Yes". (...)

She said: "What changed my mind was Mrs Thatcher died and it awakened feelings of anger about the Tories and I thought to myself: 'While Nelson Mandela was being decried down there as a terrorist by the Iron Lady, he was getting the freedom of Glasgow'.

"And then the next thing I thought was that when the whole world was against us, Kenny MacAskill freed Abdelbasset al-Megrahi to international condemnation. It was these two things that made me stop and say: 'Wait a minute, we can be different'. I think there is a different culture in Scotland. We cannot save the English working class - they have got to save themselves."

Sunday, 14 September 2014

Because of Megrahi US intelligence "wouldn't cooperate with independent Scotland"

[What follows is an excerpt from one of many articles in today’s edition of The Mail on Sunday explaining how the sky will fall if Scotland is so foolish as to vote to become an independent country:]

An independent Scotland will leave the rest of the UK exposed to acts of terrorism from groups such as Islamic State, security experts warned last night.

They say that on the day of independence Scotland will lose the services of MI5, MI6 and GCHQ and the rest of the UK’s intelligence-gathering operations.

Its newly created Scottish security and intelligence agency is expected to be left with just 720 spies to defend the new state – and it will no longer be able to rely on the cooperation of the American agencies, who view Scotland with deep suspicion after the release of Lockerbie bomber Abdelbaset al-Megrahi. (...)

And former security minister Lord West warned that Britain and America could be forced to spy on Scotland, which will be considered an alien state. If Scotland doesn’t have the resources or wherewithal to guard against Islamic extremists who have returned from Syria and Iraq then the UK will have no choice but to treat Scotland as hostile.

He said: ‘From the moment they separate they become a foreign country. As far as MI6 is concerned, they’re aliens. They haven’t thought this through. It’s deeply worrying.’

Saturday, 13 September 2014

The disgrace that is the Lockerbie prosecution

[The following is an excerpt from a letter by Neil McPherson published in today's edition of The Herald:]

The Scottish legal system, which I was brought up to believe was something to be proud of and the envy of the world, is being dismantled. The cornerstone of that system is corroboration, a concept which virtually all the leading authorities, and the judiciary considered a crucial element within our (now loosely termed) common law system.
With the disgrace that is the Lockerbie prosecution already secured for history, our First Minister was furious that the Cadder decision (by the Supreme Court, to rule that suspects be offered legal advice prior to and during interview become part of Scots law). His reaction was to secure the opinion of one of the few members of the judiciary who did not believe that corroboration was a necessary safeguard to minimise miscarriages of justice and to ensure fairness, and the Lord Justice Clerk provided the First Minister with the findings he hoped for.
Scotland today is being told that a vote for independence will lead to a fairer society. The evidence so far is that those advocating this change have produced and continue to produce a legal system where fairness plays no part and where right-wing ideology rules supreme.
[It should be pointed out that “the disgrace that is the Lockerbie prosecution” was perpetrated under a Labour-Liberal Democrat Scottish administration, both of which parties are campaigning against independence for Scotland.]

Friday, 12 September 2014

Discredited forensic science at heart of Lockerbie conviction

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

Gareth Peirce calls for independent inquiry into Lockerbie bombing

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

An independent inquiry into the Lockerbie bombing was called for last night by a leading human rights lawyer.

Gareth Peirce, who has represented a string of high-profile victims of miscarriage of justice, said that the forensic evidence on which the Lockerbie bomber, Abdelbaset Ali Mohmed al-Megrahi, was convicted was flawed.

The finding itself was “very, very worrying” and based the same kind of discredited forensic science that was at the heart of several notable miscarriages of justice in the '70s and '80s, she said.

“The [Lockerbie] case was founded on twin pillars: one, that al-Megrahi was linked to a charred fragment of a bomb timer; and second, his identification was ‘claimed’ by a man who could not be sure of his evidence.

“Has everyone forgotten the lessons learned of flawed scientific evidence and identification?

“The point being made by the families over 20 years is that they want to know the cause of the Lockerbie disaster. And at every turn, limitations have been put on their ability to discover it.” (...)

She said that there had been a Fatal Accident Inquiry in 1999, which was limited to the immediate cause of the explosion so as not to prejudice future prosecutions, she said.

Some 15 years later there was the prosecution in the Hague of two Libyans, where the family could only be present and observe. But there had never been a “proper explanation of what they want to hear.”

But a UN assessor appointed to the trial had been scathing of the judges’ verdict, she added, and of the “atmosphere of political interference that permeated the trial”.

It was now down to ministers to set up an independent inquiry, whether Scottish or UK ministers, she said.

“I completely endorse what the families say, that this country, Britain, bears the responsibility for there being an adequate investigation into what actually occurred.”

She added that the fact that the case was referred back to the Court of Appeal by the Scottish Criminal Cases Appeal Commission showed the huge obstacles that al-Megrahi had surmounted.

“It is very difficult to get a case referred back. “He then had a choice of abandoning it and going home to die, or staying a fighting it,” she added.

But it was crucial that the evidence assembled came out. “The families had believed that after 20 years there was about to be a proper investigation. But their wishes have been frustrated.”

Eleven years since removal of UN sanctions against Libya

[Today marks the eleventh anniversary of the removal by the United Nations Security Council of the sanctions against Libya imposed in the wake of Lockerbie. Here are some extracts from the report published at the time by the United Nations News Centre:]

After several delays in recent weeks, the United Nations Security Council today finally lifted decade-old sanctions imposed against Libya over the deadly bombing in 1988 of Pan Am flight 103 over Lockerbie, Scotland, after Tripoli agreed to pay up to $10 million each to the families of the 270 victims.

The vote on the resolution, adopted by 13 in favour with two abstentions – France and the United States – had been postponed repeatedly while Paris negotiated with Libya to improve a settlement of $34 million it had already reached over the similar bombing of a French UTA plane over Niger in 1989, which killed 170 people.

Welcoming the vote, Secretary-General Kofi Annan said in a statement he hoped this "important step, along with the settlement arrangements agreed following many years of intensive negotiations, will help bring some comfort to the families of the victims of the tragic events" over Scotland and Niger "as the international community strives to bring this tragic chapter to a close."

The sanctions, which included a ban on military sales, air communications and certain oil equipment, had already been suspended by the Council in 1999 after Libya agreed to hand over two nationals for trial before a Scottish court sitting in the Netherlands in connection with the bombing. One of them, Abdel Basset Al-Megrahi, was convicted and jailed for his role.

The United Kingdom and Bulgaria cosponsored the resolution after Libya told the Council in August of its readiness to cooperate in the international fight against terrorism and compensate the families of those killed at Lockerbie, as demanded by Council resolutions 748 of 1992 and 883 of 1993.

Earlier this week, UK Ambassador Emyr Jones Parry, who is Council President for the month of September, said Libya’s current compliance with the terms of the earlier resolutions could allow it to move back into the international community.

[A flavour of the current situation in Libya, eleven years after the removal of sanctions and approaching three years after the death of Muammar Gaddafi, can be gleaned here and here and here.]

Thursday, 11 September 2014

Story breaks of Heathrow baggage area security breach

[What follows is a report from The Mirror newspaper published on this date in 2001:]

Pan Am's Heathrow baggage area was broken into hours before Flight 103 was blasted apart over Lockerbie, The Mirror has found. But a statement on the incident made to police by security guard Ray Manly 12 years ago was lost and the crucial information never revealed in court. Mr Manly found a padlock cut open, leaving the way clear for a bomb to be planted in an area where luggage was ready to be loaded. The lock, which could yield clues, is also missing. Mr Manly, 63, said: "I can't believe the statement was lost. It's just incredible."

The new evidence throws doubt on the murder conviction of Libyan Abdelbaset Al Megrahi, 49. Prosecutors said the Flight 103 bomb was flown from Malta to Heathrow. The defence said it was more likely the bomb was introduced at Heathrow. Heathrow security guard Mr Manly was stunned when his evidence of a potential bomb threat to Pan Am's Flight 103 was ignored by the Lockerbie trial. The reason was simple - a statement he made to police disappeared and his information was overlooked. As a result, neither prosecution or defence knew a break-in had taken place. Shocked Mr Manly discovered a professional had sliced through a heavy duty padlock protecting Pan Am's baggage area at Heathrow's Terminal Three hours before the doomed flight took off.

It left the way clear for terrorists to steal a luggage tag and plant a suitcase bomb among baggage already X-rayed and ready for loading. Although Mr Manly reported the break-in, it was NOT investigated before take-off. Anti-terrorist police only questioned him about the incident the next month and never questioned him again. And, 12 years later, there is no sign of the statement or padlock which could hold vital forensic clues. The new evidence could now play a crucial role in the appeal of convicted bomber Abdelbaset Ali Mohamet Al Megrahi, 49, who is serving life for the outrage which killed 270. Mr Manly, 63 - who has since been questioned for three hours by prosecutors - told a friend: "I can't believe my evidence was not part of the trial and my statement went missing.

"A terrorist who wanted to put a bomb on that plane would have gained access to the perfect place. The luggage would not be checked again before being loaded on the plane. "Although police took a statement, I never heard from anyone afterwards. When there was no mention of my evidence at the trial I rang police who put me in touch with the defence. "They told me no one knew about my statement or the break-in. I find that just incredible. "My statement has disappeared and so has the padlock. No one can even tell me if it was tested for fingerprints. "This has been weighing on my mind for over 12 years. At last someone is taking it seriously." The Mirror has obtained copies of two sworn affidavits Mr Manly, who has arthritis, made to defence lawyers.

They will form a key part of Al Megrahi's appeal next year. Mr Manly may be called to give evidence. The guard discovered the security breach at 12.30am on December 21, 1988, seventeen and a half hours before Flight 103 was ripped apart at 31,000ft. At the time, he was in charge of four staff stationed at numbered control posts on the public side of the airport to ensure only those authorised could enter the airside section. One control post - CP2 - was on the ground floor of the terminal, less than 50ft from the Pan Am check-in desk. It was next to the entrance to a Pan Am baggage area on the airside used for luggage too big to be processed by normal check-in procedures. There was a door in a corridor linking the check-in area and the control post. But it was never locked. A guard would be posted outside the rubber doors of the baggage entrance at all times when they were unlocked. When there were no more bags to check in, the doors would be locked and a padlocked metal bar placed across. Mr Manly, of Surbiton, Surrey, was making his rounds when he found the broken padlock.

He said in his statement to lawyers: "Position CP2 had been interfered with. The doors were closed. "However, the padlock was on the floor to the left of the doors and had been cut through in a way which suggested bolt cutters had been used. I reported my discovery to my night duty officer, Phil Radley and stayed at the post until I could be relieved. "I did not search the area or enter into the airside through the door. No other person came to the scene. "In the area airside of CP2, baggage containers for use inside aircraft were left. Loose baggage tagged for loading on to flights would also be left. "In the check-in area Pan Am baggage labels of various types were left unsecured in desks. "I believe it would have been possible for an unauthorised person to obtain tags for a particular Pan Am flight then, having broken the CP2 lock, to have introduced a tagged bag into the baggage build up area."

Now retired Mr Manly told his friend: "It was the most serious security breach that I came across in 17 years at Heathrow. "This was a professional job. It would have allowed an intruder direct access to the area where Pan Am bags were stored. "The bags had come from other flights and would already have been tagged and X-rayed." Mr Manly - who recorded the incident in a log book and an incident report form - reported back to his supervisor who alerted police at the airport. He was told to stay at CP2 until he was relieved two hours later. In that time, neither his supervisor or police arrived. Amazingly, Mr Manly was not interviewed by anti-terrorist police until the following month. He said: "I was interviewed by a Mr Robson who took a statement. He had the broken padlock in his possession."

After learning that his evidence was lost, Mr Manly was quizzed in March by a lawyer from Scottish prosecutors. He said: "He wanted to know why I hadn't come forward before. I told him I'd given my evidence to police and assumed it had gone forward to the court. "No one has been able to explain why that didn't happen. "It was lucky the airport authorities were able to find the log book and incident form I'd filled in. Otherwise I doubt anyone would have believed me."

Al Megrahi was jailed for a minimum 20 years in January by a Scottish court sitting in Camp Zeist in the Netherlands. Alleged accomplice Al Amin Khalifa Fhimah, 44, was cleared. Prosecutors claimed the Libyans placed a suitcase bomb on a flight from Luqa airport, in Malta, to Frankfurt. The case was then "interlined" on to a connecting flight to Heathrow where it was stored before being loaded on Flight 103. But Al Megrahi's defence, Bill Taylor QC, insisted there was no direct evidence of this. Instead, he said, a terrorist could have introduced the bomb at Heathrow as there would be less risk of the device being lost.

Peter Walker, Pan Am baggage supervisor at Heathrow, told the £66million hearing six interline bags were loaded on the flight along with luggage from Frankfurt and Heathrow passengers. At the time, Heathrow did not have guards based inside the airside baggage build-up area. There was also no system to prevent unaccompanied bags being loaded on planes. At first, it was believed Palestinian terrorists carried out the attack on the orders of Iran. Suspicion fell on Megrahi and Fhimah after the CIA received information from a Libyan spy. The Procurator Fiscal's Office in Edinburgh, which brought the case, said last night: "As an appeal is pending it is inappropriate to comment."

[The concealment from Megrahi’s defence team of the evidence relating to the Heathrow break-in is the subject of one of Justice for Megrahi’s allegations of criminal misconduct in the Lockerbie investigation, prosecution and trial that are currently under investigation by Police Scotland.]