Legal expert wants investigation into Crown's actions on disclosure

[This is the headline over a report in today’s edition of The Herald. It reads as follows:]

A law expert has called for an investigation into a "culture of unwillingness" at the Crown Office amid concerns over the case of David Gilroy, convicted of murdering his former lover despite no body being found.

Professor Robert Black, QC, one of the architects of the Lockerbie trial, said potential disclosure issues in high profile cases are a public concern and families and legal teams should not have to launch lengthy and costly court actions to access information that could be relevant to their case.

The family of Gilroy, three years into an 18-year life sentence for the murder of his Edinburgh bookkeeper colleague Suzanne Pilley, who was 38, are trying to clear the 52-year-old who was convicted without witness or forensic evidence five years ago.

They are challenging the Crown Office over the disclosure of information including CCTV footage from various locations which they say would give answers that would either prove or disprove their case.

In 2012 a damning SCCRC dossier over the handling of evidence in the Lockerbie bombing trial found the Crown failed to disclose seven key items of evidence and that had such information been shared with the defence, the result of the trial of Abdelbaset Ali Mohmed al Megrahi could have been different.

Mr Black, who prepared a live case for the commission for relatives of victims, said it was of concern the Gilroy case raised issues of disclosure practices and non-disclosure of evidence.

He said: "These are two of the items founded upon in the current Megrahi application and indeed were among the grounds of referral accepted by the SCCRC in its 2007 report on the Megrahi case.

"A serious question that arises and needs to be investigated is whether there was, and whether there still is, within the Crown Office a culture of unwillingness to comply with their duty of disclosure to the defence.

"This is not a matter that should be left to be raised in individual cases but should be addressed more generally, perhaps in the Justice Committee of the Scottish Parliament."

The circumstantial case was enough to convince the majority of a jury that an early morning encounter between the two had ended in married father-of-two Gilroy throttling the woman who spurned him in a jealous rage.

Prosecutors argued that he concealed her body in the basement of the offices where they worked and then the boot of his car before disposing of her remains next day somewhere in the Argyll forest.

Advocate Depute Alex Prentice QC said during his trial that when the individual strands of evidence presented were bound together they formed a cable and the strength of the case.

The Gilroy family have taken their case public because they believe so far the Scottish justice system has let them down.

His case is currently being examined by the Scottish Criminal Cases Review Commission which could lead to a new appeal being heard.

Details of the SCCRC case are confidential, but the Gilroy family have echoed broad concerns over the disclosure of evidence.

A Crown Office spokesman said that "Gilroy was sentenced to life imprisonment having been found guilty by a jury after trial".

"The Crown has a duty of disclosure throughout proceedings, which was fulfilled."

A spokesman for Police Scotland said officers could not comment as the case is subject to SCCRC review.

In Lockerbie case, three of the undisclosed documents related to payments of around $3 million (£1.9m) made by the US Justice Department to Paul and Tony Gauci - key witnesses in the Crown's case who claimed Megrahi bought clothes in his Malta shop, which were later found to be in the suitcase that contained the bomb which killed 270 in December 1988.

Flight from the truth

[This is the headline over an article by John Ashton and Ian Ferguson that was published in The Guardian on this date in 2001.  It reads in part:]

There are two versions of the Lockerbie story. One - told at the trial - is neat, clearcut and, ultimately, reassuring. The other, which we believe is the true story, is far less comfortable. In the official version it was bad guys against good: Muammar Gadafy and his recently convicted henchman Abdel Baset al-Megrahi versus the heroic international investigation led by the tiny Dumfries and Galloway police force. It ends with the triumph of justice over terror. In the alternative version the heroics of the cops are obscured by dirty politics. It ends with a dreadful miscarriage of justice.

The conviction of Megrahi (his co-accused, Al-Amin Khalifah Fhimah, was acquitted) supposedly proved the official version and drew a line under the Lockerbie saga. But the case will not go away: Megrahi is planning an appeal and the relatives of the British passengers are determined to hold the Labour government to their promise, made in opposition, of an independent inquiry. If the relatives get their way, a huge can of worms will be opened for, (...) almost from the night the plane went down, vital evidence was suppressed.

In the official version, of course, nothing of the kind happened. It posits that on December 21 1988 Megrahi placed a bomb in a suitcase, which was loaded, unaccompanied, on to a flight from Malta to Frankfurt, where it was transferred to Pan Am flight 103. It exploded over Lockerbie just after 7pm that night, killing all 259 people on board and 11 on the ground. The bomb was built into a Toshiba radio-cassette player and fitted with a distinctive timing device supplied to the Libyan intelligence service by a Swiss company, Mebo. The firm's Zurich offices were shared in 1988 with the Libyan company ABH, with which Megrahi was closely involved. He was also alleged to have bought the clothes in the bomb suitcase from the Mary's House shop in Malta on December 7 1988.

During the eight-month trial the prosecution could offer no direct evidence of the bomb being loaded in Malta, and their star witnesses, Abdul Majid Giaka - a former colleague of the two accused - was exposed as a money-motivated fantasist. The court heard that Mebo sold identical timers to the East German Stasi (which armed Middle East terrorist groups), and the evidence of the Mary's House shopkeeper, Tony Gauci, suggested that the man who bought the clothes was considerably older and taller than Megrahi, and that the purchase occurred two weeks earlier, when, it is believed, Megrahi had an alibi. The fact that the judges refused to be swayed by the clouds of doubt hanging over the prosecution case left many observers staggered.

In the alternative version, the real culprits lay not in Libya, but in Iran, Syria and Lebanon. It begins in July 1988, when a US warship accidentally shot down an Iranian airliner over the Persian Gulf, killing 290 people. The CIA later revealed that, within days, Iran hired the Syrian-based Popular Front for the Liberation of Palestine - General Command (PFLP-GC) to avenge the incident. The group had close ties to the Lebanese Islamic radicals Hizbullah and in the early 1970s specialised in bombing airliners. Its favoured method was to plant carefully disguised bombs on innocent dupes.

The group's leader, Ahmed Jibril, dispatched his right-hand man, Hafez Dalkamoni, and a bomb-maker, Marwan Khreesat, to West Germany, where Khreesat manufactured at least five barometric bombs designed to blow up aircraft, two - possibly more - of which were built into Toshiba radio-cassette players. Six weeks before Lockerbie, police raided the PFLP-GC gang and found one of the Toshiba bombs. In the official version this put an end to the revenge mission, but there is every reason to doubt this. The PFLP-GC may not have relied solely on Khreesat to make bombs and, in any case, at least four of his devices were unaccounted for. Three were recovered four months after Lockerbie, but the second Toshiba was never found.

Five weeks after the raid, the Defence Intelligence Agency (DIA) warned of the continuing threat of an Iranian reprisal and noted that Middle Eastern terrorist groups active in Germany had the infrastructure to conduct bombings. At around the same time, the US state department circulated a specific warning that radical Palestinians were planning to attack a Pan Am target in Europe.

Three months after the bombing, the transport minister Paul Channon told lobby journalists that the culprits had been identified and charges were imminent. Everyone knew he meant the PFLP-GC. The months passed and nothing happened. A White House leak later revealed that Margaret Thatcher and George Bush had agreed to downplay the investigation for fear of endangering hostages in Lebanon - almost all held by Syrian and Iranian proxy groups. Following the Gulf war, in which Syria became a crucial western ally, the PFLP-GC and their Syrian and Iranian sponsors were officially exonerated, and the blame was shifted to Libya.

The alternative version becomes murkier still when it comes to how Jibril's men got the bomb on to flight 103. Two PFLP-GC insiders and many western intelligence sources claim it was planted in the luggage of Khalid Jaafar, a Lebanese-American mule in a heroin trafficking operation. The whistle-blowing spooks say elements within the CIA were allowing Middle Eastern dealers to ship drugs to America in return for help in locating and releasing US hostages. In allowing the suitcases containing heroin to bypass security procedures, the CIA handed the dealers' terrorist associates a failsafe means of getting the bomb on the plane.

Among the Lockerbie victims was a party of US intelligence specialists, led by Major Charles McKee of the DIA, returning from an aborted hostage-rescue mission in Lebanon. A variety of sources have claimed that McKee, who was fiercely anti-drugs, got wind of the CIA's deals and was returning to Washington to blow the whistle. A few months after Lockerbie, reports emerged from Lebanon that McKee's travel plans had been leaked to the bombers. The implication was that Flight 103 was targeted, in part, because he was on board.

As with the official version, there is no proof of this scenario, but there is a chain of circumstantial evidence. Much of it comes from the army of police officers and volunteers who scoured the vast crash site in the weeks after the bombing. And much of it was either not revealed at the recent trial or, worse, covered up.

One such item was a T-shirt found in Kielder forest, Northumberland, by David Clark, who was later told by police that it was potentially important evidence because it bore the insignia of Hizbullah. The T-shirt has never been officially acknowledged or explained. At least four large quantities of US dollars were also found. No one knows who was carrying the cash, but it has been speculated that McKee's team would have had large amounts to pay Lebanese informants. When the Labour MP Tam Dalyell asked about the cash finds in 1995, the Scottish Office minister, Lord James Douglas-Hamilton, replied that nothing other than "what might ordinarily be regarded as personal money" was found.

Also denied was the existence of two large quantities of what appeared to be heroin: one found on Lockerbie golf course and the other in a suitcase discovered by a farmer a couple of miles to the east. The Rev John Mosey, whose 19-year-old daughter Helga died in the bombing, learned about the latter find and assumed the farmer would be questioned at the Lockerbie fatal accident inquiry held in October 1990. But the farmer did not appear, and police witnesses denied that any drugs were found. Mosey raised the issue with a senior police officer, who told him that the farmer would be interviewed. To the best of Mosey's knowledge, this never happened. In 1992 Dalyell wrote to the Scottish lord advocate, Lord Fraser of Carmyllie, about the drugs. In his reply, Lord Fraser stated that none had been found, save for a small quantity of cannabis.

Who engineered the cover-up? Almost certainly not anyone in Britain. Police officers and volunteer searchers have spoken of American agents removing items from the crash site. A proper inquiry into these issues could reveal a picture that governments on both sides of the Atlantic dare not face, but without it the echoes of the Lockerbie bomb will be ringing for a long time to come.

Bush and Thatcher "agreed in April 1989 to bury the truth"

[On this date in 1992 an article by Jeffrey Steinberg headed Al-Kassar arrest revives scandal of Bush role in Lockerbie coverup was published in Executive Intelligence Review. It is an interesting historical piece reflecting some of the theories doing the rounds at that time. A few excerpts follow:]

Just when George [H W] Bush thought that he had forever buried the Lockerbie scandal, authorities in Spain early in June nabbed fugitive narco-terrorist Mansur Al-Kassar. As a result, one of the President's worst fears may have been revived.

Al-Kassar, a Syrian national with ties to the regime of Hafez Assad in Damascus, had been accused in 1989 of masterminding the Dec 21, 1988 bombing of Pan American Airlines Flight 103 over Lockerbie, Scotland, in which 270 people perished. 

At the time of the Lockerbie tragedy, Al-Kassar had been secretly employed by the US government as the so-called "second channel" negotiating the release of American hostages held in Beirut, Lebanon. Al-Kassar had, according to congressional testimony, received an estimated $2.5 million from Oliver North's secret Iran-Contra Swiss bank accounts for his role in providing Soviet-made weapons to the Nicaraguan Contra rebels. Al-Kassar's ties to the Reagan and Bush administrations apparently continued long after the IranContra scandal was exposed and North, Adm John Poindexter, and others were booted out of the government.

According to a report prepared by former Israeli intelligence officer Juval Aviv, Al-Kassar was still working with a CIA team in Frankfurt, Germany in the autumn of 1988, when he agreed to help Syrian-sponsored terrorist Ahmed Jibril, the head of the Popular Front for the Liberation of Palestine-General Command, plant the bomb on board Flight 103. According to the Aviv study, Al-Kassar had infiltrated several members of his Bekaa Valley heroin-smuggling ring onto the baggage handling crew at Frankfurt airport, and they had been able to bypass Pan Am security to plant the bomb on the plane, using the same modus operandi by which they were regularly smuggling heroin into the United States. (...)

Time magazine devoted its April 27 cover story to "The Untold Story of Pan Am 103." The article, by senior Time-Life correspondent Roy Rowan, revived the Aviv allegations about AI-Kassar's role in the Lockerbie massacre, and pointed to the Syrian's collusion with the Frankfurt-based CIA team. Rowan went beyond the initial Aviv report and published new details:

• In January 1990, Pan Am attorney James Shaughnessy, Aviv, and a former US Army polygraphist traveled to Frankfurt to administer lie detector tests to two Pan Am I baggage handlers, Kilin Caslan Tuzcu and Roland O'Neill. Both men were on duty the day Flight 103 blew up. According to testimony given by the polygraphist to a Washington, DC federal grand jury, both men flunked the tests. The specific areas in which he said the two men were most clearly lying dealt with the switching of bags and the planting of the bomb aboard Flight 103. 

• After Pan Am arranged to have Tuzcu and O'Neill travel from Frankfurt to London on a pretext of company business, British authorities refused to detain or arrest the men, claiming that they viewed them as "scapegoats." 

This bizarre behavior of the British authorities lent credence to charges first published by syndicated columnist Jack Anderson in 1990 that President Bush and then British Prime Minister Margaret Thatcher had secretly agreed in April 1989 to bury the truth about Syria's role in the Lockerbie tragedy because it would politically blow up in their faces. (...)

According to an Israeli source, following Al-Kassar's arrest, Spanish authorities searched his Marbella home and discovered a safe filled with diaries and business papers. The Israeli source reports that Al-Kassar is now spilling his guts to the Spanish police about his work for the Reagan and Bush administrations, the secret dealings between Washington and Damascus, and the bombing of Pan Am Flight 103, including his personal role in developing the cover story that Libyan intelligence, acting on its own, had blown up the plane. 

Juval Aviv, the New York City-based private investigator who conducted the initial investigation for Pan Am, is circumspect about where the Lockerbie probe will go from here: "The Time magazine story has fortunately put things back in perspective, and the arrest of Mr Al-Kassar could lead to a real breakthrough in the case. I still stand by my original investigative report. I have do doubt that the Syrians were deeply involved in the Locketbie bombing, as were the Iranians and elements of Libyan intelligence. In my initial investigation, I developed evidence of a kind of 'Terror, Inc' engaged in both narcotics smuggling and terrorism for hire, running out of the Middle East into Europe. I cited the involvement of Libya in the Pan Am plot and I even referenced Mr Al-Kassar's links to Tripoli. 

"I was deeply disturbed last year when the US Department of Justice indicted the two Libyans and left the world with the impression that Syria and Iran were blameless. Now, perhaps, in spite of that action and in spite of the events in federal district court in Brooklyn, the full story will come out."

Let foreign judges sort out mess on Lockerbie

[This is part of the headline over a report published in The Herald on this date in 2007. It reads as follows:]

Judges from outside Scotland could be required to clear up the potential damage to the reputation of Scottish justice if the Lockerbie trial verdict is declared to be a potential miscarriage of justice this week.

That was proposed yesterday by Tam Dalyell, the former Labour MP for Linlithgow and a long-time campaigner for the verdict on Britain's worst case of mass murder to be reconsidered.

Yesterday he joined fellow campaigner Jim Swire, father of a victim of the bombing of PanAm flight 103, in calling on the SNP-led administration at Holyrood to call an independent public inquiry into the handling of the Lockerbie inquiry.

A spokeswoman for the administration said yesterday that it awaits Thursday's finding by the Scottish Criminal Cases Review Commission (SCCRC), adding: "It is the strong view of the Scottish government that due process of law will be followed and be seen to be followed in all matters pertaining to this case."

Mr Dalyell protests the innocence of Abdelbaset Ali Mohmed al Megrahi, the man found guilty of planting a bomb on the flight that blew up over Lockerbie in December 1988, killing 270 people. There is a growing expectation the SCCRC will conclude that there may have been a miscarriage of justice and refer the case to the Court of Appeal.

Mr Dalyell recently met the former Libyan intelligence officer at Greenock Prison, where he is serving 27 years. The former MP quoted him as admitting he had been breaking United Nations sanctions against Libya at the time of the bombing: "He said he was getting spare parts for Libya's oil industry and Libyan Arab Airlines, and that is why he travelled so much," said Mr Dalyell.

He argues that revelations about the weakness of the prosecution case will raise questions about the quality of the defence, and why there was so little challenge to the reliability of key witness Tony Gauci, who claimed to have seen Megrahi in Malta, but is alleged to have changed his version of events in crucial ways.

If the SCCRC comes out against the conviction, Mr Dalyell claimed: "It will be shattering for the whole system of Scottish justice."

It was claimed that too many senior judges have been involved in past proceedings on the Lockerbie bombing. "They should call in a couple of judges from another jurisdiction, and not necessarily England," said the former MP. "But of course, they have got to do it quickly."

Several newspapers yesterday published details of the appeal lawyers' case, much of it focusing on the pivotal evidence from the Maltese shopkeeper.

There were accusations that other vital evidence was lost, destroyed or tampered with, and that there was interference with the police inquiry and prosecution case on both sides of the Atlantic. There was also a claim that the SCCRC's finding, after three-and-a-half years, was reached 18 months ago but has been delayed.

The case carries a risk that an acquittal could lead the Libyan government to claim back the $2.7bn it paid to families of the Lockerbie victims, a bill that could come to the Scottish Executive.

Megrahi was the subject of the first spat between the SNP administration and Downing Street after Tony Blair last month signed a memorandum of understanding on prisoner transfer with Libyan leader Muammar Gaddafi but neglected to consult Scottish authorities in advance.

Dutch officials consider Lockerbie analogy for MH17 trial

[What follows is excerpted from a Reuters news agency report published yesterday:]

The Netherlands is discussing with its allies an international tribunal to prosecute those suspected of downing a Malaysian airliner over rebel-held eastern Ukraine last year, sources familiar with the discussions have told Reuters.

The chance of a successful prosecution is considered slim at best but the Dutch still hope that, by pushing for a UN-style court with the backing of Western allies, they could pressure Russia, whose role in the process is critical, into cooperating.

Of the 298 dead passengers and crew on Malaysia Airlines flight MH17, two-thirds were Dutch. With the anniversary of the disaster looming on July 17, the government is under intense pressure to act from a public who mostly believe Russia either shot down the plane or supplied the rocket to those who did.

Two sources in the Netherlands, who spoke on condition of anonymity because of the sensitivity of the issue, said the legal and political complexities of the case had persuaded it to focus on creating an international court backed by the UN Security Council, once a multinational investigation finishes and suspects are named. (...)

With relations between Russia and the West at their lowest ebb since the Cold War, Moscow might have little interest in cooperating with any trial held in the West.

But since an international court would require backing from the UN Security Council, Russia would be forced either to acquiesce or to use its veto and risk being seen as the main obstacle to justice in a mass killing of civilians.

If Moscow refused to back a tribunal, the Netherlands could push for further economic sanctions beyond those already imposed by the European Union and the United States over Russia's annexation of Crimea from Ukraine last year and its support for the rebels, one diplomatic source said. (...)

The sources said the Dutch would like the court to be based in the Netherlands, although details of which law would apply and how the suspects would be captured and tried had yet to be worked out.

The closest analogy might be the 1988 Lockerbie bombing, when Pan Am flight 103 was blown out of the sky over Scotland, killing all 243 people onboard.

Two Libyan secret service agents were handed over by Libya's late leader Muammar Gaddafi under the pressure of broad economic sanctions. They were put on trial in the Netherlands under Scottish law, and one was convicted.

The conduct of the trial and the verdict "were simply outrageous"

[This is the headline over an article published in Scotland on Sunday on this date in 2007. It reads as follows:]

Evidence against the Lockerbie bomber was fabricated and manipulated on both sides of the Atlantic, according to leaked defence documents which appear to undermine the conviction of Abdelbaset Ali Mohmed al-Megrahi.

Investigators for Megrahi claim to have compelling new evidence of widespread tampering with evidence, missing or overlooked statements, and a concerted attempt to lead investigators away from the original Iranian-backed suspects and towards Libya.

Hundreds of new documents and photographs examined by Scotland on Sunday appear to show many aspects of the Lockerbie prosecution were at best incompetent and at worst amounted to an attempt to pervert the course of justice.

Last night, legal experts and families of the victims reacted with astonishment and outrage to the revelations. Jim Swire, whose daughter died in the disaster, said: "Scottish justice obviously played a leading part in one of the most disgraceful miscarriages of justice in history. The Americans played their role in the investigation and influenced the prosecution."

Megrahi, who was convicted in 2001 of the murder of 270 people in the Lockerbie bombing, will learn on Thursday whether his case will, as expected, be sent back to court by the Scottish Criminal Cases Review Commission (SCCRC).

Megrahi was convicted for the December 1988 bombing on crucial evidence that he bought items of clothing packed into the suitcase containing the bomb and that he was closely associated with the firm that made part of the bomb timer. Evidence that a fragment of bomb timer was implanted in a shirt sealed Megrahi's fate.

But the defence papers to the commission, seen by this newspaper, appear to undermine that chain of evidence. Among the key findings are:

• Tony Gauci, the Maltese shopkeeper who sold the clothes to the bomber, gave two earlier statements in which he identified convicted Egyptian terrorist Abu Talb;

• Gauci gave earlier statements saying he did not sell a shirt to the man but six months later remembered selling shirts and the price;

• Two of Gauci's statements are missing altogether;

• A babygro said to have been wrapped around the bomb and shown to the court blown to pieces was recovered intact, according to a statement from the woman who found it;

• A manual for the Toshiba radio containing the bomb was in pieces when shown to the court but was intact when recovered, according to statements from mountain rescuers;

• The discovery of the all-important shirt containing the bomb timer fragment was recorded in May 1989 by a UK forensic scientist and in January 1990 by German investigators. Examination of forensic records shows a "new" page on the discovery was inserted into the record of evidence.

• The same Slalom shirt was in a different condition when shown to the court than when photographed by German investigators.

The defence team believes it was necessary in 1990 for the prosecution to alter evidence, for political reasons. The Gulf War meant it was essential to keep Iran onside and Libya became a suitable scapegoat. Investigators switched from the current known suspects, a Palestinian terror group, the PFLP-GC, and Abu Talb, an Egyptian currently serving life in Sweden.

While the main perpetrators appear to have been CIA officers, according to the defence papers, there is also damning evidence suggesting police officers and other investigators took part in preparing false evidence.

It can also be confirmed today that a former senior Scottish police officer, who worked at a high level on the Lockerbie inquiry, has given statements to the SCCRC in which he is understood to support claims of planted evidence.

A document seen by this newspaper reveals the officer - codenamed "Golfer" - believes "labels and productions from the locus have been interfered with". Golfer also reveals there was no "investigative or operational" reason for the inquiry to switch the inquiry to Libya.

Last night, retired MP and Lockerbie campaigner Tam Dalyell said: "It is time we tried to put right the wrongs that have been perpetrated. This was the most high profile trial internationally that there has ever been, and the conduct of it and the verdict were simply outrageous."

Labour and Tory hypocrisy over Megrahi release

[On this date five years ago, an article by The Scotsman’s then columnist Duncan Hamilton was published on the newspaper’s website under the headline Why the release of Megrahi remains the right decision.  It reads in part:]

Sadly, the full truth about Lockerbie will never be known. The case will not now be satisfactorily concluded in the courts. Megrahi's appeal against conviction was the nearest I suspect we were going to get to the truth, not just because of the forensic focus of the Appeal Court but because of what new material would have entered the public domain.

Instead, we are suffering from a confusion created by politicians on both sides of the Atlantic, all firing off in different directions. Some still want the truth about the bombing, others want to investigate Tony Blair's "Deal in the Desert" with Colonel Gaddafi, many want to give BP a public flogging and there remain calls to re-examine the controversial decision of the Scottish Government to send Megrahi home. There is no unity of purpose. The cross currents those lines of enquiry create do little more than create a media storm.

Perhaps the greatest deception, however, is the idea that somehow the Scottish Government did something which the US and the UK opposed. That, in my view, is utter nonsense. There was no more than the necessary disapproving noises from Washington while the Labour Government offered tacit approval. In opposition, even David Cameron was critical, but careful. After all, wasn't it Gordon Brown who made it clear to Libya that he did not want Megrahi to die in Scotland? Wasn't it Tony Blair who assiduously worked on the deal to get a prisoner transfer agreement covering Megrahi in place from May 2007? Do you really think Blair acted alone and without US approval in seeking to "normalise" trade and oil relations with Libya? Do you really think he was freelancing?

The then UK Justice Secretary, Jack Straw, said the prisoner transfer agreement was partly because "we wanted to bring it (Libya] back into the fold. And yes, that included trade because trade is an essential part of it and subsequently there was the BP deal." That was a shared priority for the UK and US. Is that murky double dealing or just the reality of global politics? Both, probably, but let's nail the suggestion that the US and UK wanted anything other than Megrahi returned home. Those who had most to gain did most to make this happen.

The Scottish Government was never likely to touch the prisoner transfer agreement with a barge pole. It plainly recognised that to do so would raise precisely the allegations now flying around. The crucial point from a Scottish perspective is therefore that the wheeling and dealing of the UK and BP is an important and potentially scandalous back story to the separate decision to release Megrahi, but it is no more than that. That decision was made, therefore, solely on compassionate grounds. That doesn't mean the Scottish Government existed in a foreign policy bubble, entirely unaware of the external pressures and preferences of those around them. But no-one, on either side of the Atlantic, has produced anything, at any time, to suggest this was anything other than a very tough, divisive but objectively considered decision. That is precisely why the Scottish Government published all the evidence upon which the decision relied.

The consistent and considered stance of the Scottish Government stands in contrast to the behaviour of others. (...)

David Cameron also emerges damaged. Scots will not quickly forget the ease with which he decided to side with BP and blame the Scottish Government. Next time he tries to tell us we are strengthened abroad by being part of the Union, we might fairly ask why he was so eager to join the condemnation of the Scottish Government rather than explain to an American audience, on our behalf and as our Prime Minister, the complexities of the decision.

He could have emphasised three facts to protect our position. First, BP did not lobby the Scottish Government but did lobby the UK Government. All parties concerned have confirmed it. Secondly, the Scottish Government had no part whatsoever to play in the discussions and deals around the prisoner transfer agreement and any related oil deals. No-one has at any time suggested otherwise. Thirdly, the decision to release Megrahi - right or wrong -- was made on its own merits and without interference or lobbying. He didn't emphasise any of that, instead allowing misunderstanding and misinformation to fill the void.

I also resent the suggestion that compassion is time limited to three months. Just because Megrahi has not done the convenient thing and died within his allotted slot, are we to say that the decision was wrong? That position is absurd and cruel. Megrahi will die soon enough. We chose to let him do so at home and with dignity. That was, and is, the right decision.

Ulrich Lumpert and the MEBO circuit board

[According to his affidavit dated 18 July 2007, it was on 22 June 1989 that MEBO employee Ulrich Lumpert handed over the MST-13 circuit board from which fragment PT/35(b) derived “to a person who was an official investigator in the Lockerbie case”. An English translation of this German-language affidavit can be read here. At the time that this affidavit became public knowledge, I commented as follows:]

Ulrich Lumpert, an engineer at one time employed by MEBO in Zurich, gave evidence at the Lockerbie trial that a fragment of circuit board allegedly found amongst the aircraft debris (and which was absolutely crucial to the prosecution contention that the bomb which destroyed Pan Am 103 was linked to Libya) was part of an operative MST-13 timer manufactured by MEBO. In an affidavit sworn in Switzerland in July 2007 (available on the website www.lockerbie.ch) Lumpert now states that the fragment produced in court was in fact part of a non-operational demonstration circuit board that he himself had removed from the premises of MEBO and had handed over to a Lockerbie investigator on 22 June 1989 (six months AFTER the destruction of Pan Am 103).

If this is true, then it totally demolishes the prosecution version of how the aircraft was destroyed, as well, of course, as demonstrating deliberate fabrication of evidence laid before the court. 

At the forthcoming appeal resulting from the SCCRC’s report on the Megrahi conviction, will the appeal court have an opportunity to assess the truth of Lumpert’s revised version of events? The hurdles are formidable. Section 106 (3C) of the Criminal Procedure (Scotland) Act 1995 provides that an appeal may not be founded upon evidence from a witness at the original trial which is different from, or additional to, the evidence that he gave at that trial, unless there is a reasonable explanation as to why the new evidence was not given by him at the original trial and that explanation is itself supported by independent evidence. In this context “independent evidence” means evidence which was not heard at the original trial; which comes from a source other than the witness himself; and which is accepted by the appeal court as credible and reliable. It might well be extremely difficult to convince a court that these conditions were satisfied in Lumpert’s case.

Inconvenient Truths

[This is the headline over a long article by Hugh Miles that was published in the London Review of Books on this date in 2007.  The following are excerpts:]

From the outset the Lockerbie disaster has been marked by superlatives. The bombing was the deadliest terror attack on American civilians until 11 September 2001. It sparked Britain’s biggest ever criminal inquiry, led by its smallest police force, Dumfries and Galloway Constabulary. It spelled the end of Pan Am, which never recovered from the damage to its reputation. The trial at Camp Zeist was the longest and – at a cost of £75 million – the most expensive in Scottish legal history. The appeal hearing was the first Scottish trial to be broadcast live on both television and the internet.

Lawyers, politicians, diplomats and relatives of Lockerbie victims now believe that the former Libyan intelligence officer is innocent. (...)

Al-Megrahi applied to the SCCRC for a review of his case in 2003 and the commission has been reinspecting evidence from the trial for the last four years. It will submit its findings at the end of June. It looks likely that the SCCRC will find that there is enough evidence to refer al-Megrahi’s case back to the appeal court. The Crown Office has already begun reinforcing its Lockerbie legal team in anticipation of a referral.

If al-Megrahi is granted a second appeal, it will, like the original trial, be held before a panel of Scottish judges, without a jury. This time the trial will take place in Scotland, and if the glacial pace of proceedings in the past is anything to go by, it will probably not be heard before the summer of 2008. Al-Megrahi’s defence team would be ready to launch an appeal in a matter of weeks, but the prosecution would be likely to delay the hearing for as long as possible. If an appeal takes place, al-Megrahi’s defence team will produce important evidence that was not available at the time of the first appeal, evidence that seems likely not only to exonerate al-Megrahi but to do so by pointing the finger of blame at the real perpetrators of the Lockerbie bombing and revealing some inconvenient truths.

Even the [official] who presided over the Lockerbie investigation and issued the 1991 arrest warrants for the two Libyans has cast doubt on the prosecution’s case. In an interview with the Sunday Times in October 2005, Lord Fraser of Carmyllie, Scotland’s larger-than-life lord advocate from 1989 to 1992, questioned the reliability of the shopkeeper Tony Gauci, the prosecution’s star witness. ‘Gauci was not quite the full shilling. I think even his family would say [that 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.’ Lord Fraser made it clear that this did not mean he thought al-Megrahi was innocent. But he had presented Gauci as a reliable witness; he went on to become the heart of the prosecution’s case. Now he was casting doubt on the man who identified al-Megrahi. (...)

Hans Köchler, the UN observer at Camp Zeist, reported at the time that the trial was politically charged and the verdict ‘totally incomprehensible’.

In his report Köchler wrote that he found the presence of US Justice Department representatives in the court ‘highly problematic’, because it gave the impression that they were ‘“supervisors” handling vital matters of the prosecution strategy and deciding … which documents … were to be released in open court and what parts of information contained in a certain document were to be withheld.’ ‘The alternative theory of the defence,’ he went on, ‘was never seriously investigated. Amid shrouds of secrecy and national security considerations, that avenue was never seriously pursued – although it was officially declared as being of major importance for the defence case. This is totally incomprehensible to any rational observer.’ The prosecution, Köchler noted, dismissed evidence on the grounds that it was not relevant; but now that that evidence has finally – partially – been released, it turns out to be very relevant indeed: to the defence.

Whatever happens, al-Megrahi may not have to wait long. As soon as a further appeal is scheduled, he can make an application to be released from custody: the convicted Lockerbie bomber, who was supposed to serve no fewer than 27 years in a Scottish jail, might well be free this summer. Whether al-Megrahi is freed pending his appeal – and what conditions would be applied if he were – depends largely on whether his defence team can convince the judge that he is not a flight risk. This may be hard to do. The judge might decide that if he left the country, he might choose to stay in Libya rather than come back next year for another round in court. If al-Megrahi is exonerated, many tricky questions will resurface, not least what to do about the $2.7 billion compensation paid by Libya to the relatives of the victims of the bombing. And then, of course, there is the question of who really bombed Flight 103.

In the first three years following the bombing, before a shred of evidence had been produced to incriminate Libya, the Dumfries and Galloway police, the FBI and several other intelligence services around the world all shared the belief that the Lockerbie bombers belonged to the Popular Front for the Liberation of Palestine General Command (PFLP-GC), a Palestinian rejectionist organisation backed by Iran. The PFLP-GC is headed by Ahmed Jibril, a former Syrian army captain; its headquarters are in Damascus and it is closely allied with the Syrian president and other senior Syrian officials. In the 1970s and 1980s the PFLP-GC carried out a number of raids against Israel, including a novel hang-glider assault launched from inside Lebanon. Lawyers, intelligence services and diplomats around the world continue to suspect that Jibril – who has even boasted that he is responsible – was behind Lockerbie.

The case against Jibril and his gang is well established. It runs like this: in July 1988, five months before the Lockerbie bombing, a US naval commander aboard USSVincennes in the Persian Gulf shot down an Iranian airbus, apparently mistaking it for an attacker. On board Iran Air Flight 655 were 270 pilgrims en route to Mecca. Ayatollah Khomeini vowed the skies would ‘rain blood’ in revenge and offered a $10 million reward to anyone who ‘obtained justice’ for Iran. The suggestion is that the PFLP-GC was commissioned to undertake a retaliatory bombing.

We know at least that two months before Lockerbie, a PFLP-GC cell was active in the Frankfurt and Neuss areas of West Germany. On 26 October 1998, German police arrested 17 terrorist suspects who, surveillance showed, had cased Frankfurt airport and browsed Pan Am flight timetables. Four Semtex-based explosive devices were confiscated; a fifth is known to have gone missing. They were concealed inside Toshiba radios very similar to the one found at Lockerbie a few weeks later. One of the gang, a Palestinian known as Abu Talb, was later found to have a calendar in his flat in Sweden with the date of 21 December circled. New evidence, now in the hands of al-Megrahi’s defence, proves for the first time that Abu Talb was in Malta when the Lockerbie bombing took place. The Maltese man whose testimony convicted al-Megrahi has also identified Abu Talb. During al-Megrahi’s trial Abu Talb had a strange role. As part of a defence available in Scottish law, known as ‘incrimination’, Abu Talb was named as someone who – rather than the accused – might have carried out the bombing. At the time he was serving a life sentence in Sweden for the bombing of a synagogue, but he was summoned to Camp Zeist to give evidence. He ended up testifying as a prosecution witness, denying that he had anything to do with Lockerbie. In exchange for his testimony, he received lifelong immunity from prosecution.

Other evidence has emerged showing that the bomb could have been placed on the plane at Frankfurt airport, a possibility that the prosecution in al-Megrahi’s trial consistently ruled out (their case depended on the suitcase containing the bomb having been transferred from a connecting flight from Malta). Most significantly, German federal police have provided financial records showing that on 23 December 1988, two days after the bombing, the Iranian government deposited £5.9 million into a Swiss bank account that belonged to the arrested members of the PFLP-GC.

The decision to steer the investigation away from the PFLP-GC and in the direction of Libya came in the run-up to the first Gulf War, as America was looking to rally a coalition to liberate Kuwait and was calling for support from Iran and Syria. Syria subsequently joined the UN forces. Quietly, the evidence incriminating Jibril, so painstakingly sifted from the debris, was binned.

Those who continued to press the case against the PFLP-GC seemed to fall foul of American law. When a New York corporate investigative company asked to look into the bombing on behalf of Pan Am found the PFLP-GC responsible, the federal government promptly indicted the company’s president, Juval Aviv, for mail fraud. Lester Coleman, a former Defense Intelligence Agency operative who was researching a book about the PFLP-GC and Lockerbie, was charged by the FBI with ‘falsely procuring a passport’. William Casey, a lobbyist who made similar allegations in 1995, found his bank accounts frozen and federal agents searching through his trash. Even so, documents leaked from the US Defense Intelligence Agency in 1995, two years after the Libyans were first identified as the prime suspects, still blamed the PFLP-GC.

Suspicions and conspiracy theories have swirled around Lockerbie from the beginning. Some of them are fairly outlandish. In Diplomatic Baggage: The Adventures of a Trailing Spouse (2005), Brigid Keenan, the wife of the British diplomat Alan Waddams, reported that over dinner in Gambia, a former Interpol agent told her and her husband that the bombing had been a revenge attack by Iran, in retaliation for the downed airliner (though she didn’t say how he knew this). The Interpol agent claimed the cargo had not been checked because the plane was carrying drugs as part of a deal over American hostages held by Hizbullah in Beirut. Militant groups were being allowed to smuggle heroin into the US in exchange for information; the bomb had gone on board when the PFLP-GC found a loophole in this drug-running operation.

At least four US intelligence officers, including the CIA’s deputy station chief in Beirut, were on the Flight 103 passenger list. In the days following the bombing, CIA agents scoured the Scottish countryside, some reportedly dressed in Pan Am overalls. Mary Boylan, then a constable with Lothian and Borders police, has said that senior police officers told her not to make an official record of the CIA badge she recovered from the wreckage, asking her instead to hand it over to a senior colleague. Her testimony, too, is now in the hands of the SCCRC. Jim Wilson, a farmer from the village of Tundergarth, reported shortly after the bombing that he had found in his field a suitcase packed with a powdery substance that looked ‘like drugs’. He last saw the suitcase when he handed it over to the police, he said; he was never asked about it again.

When al-Megrahi was handed over for trial, Libya declared that it would accept responsibility for his actions. But it never accepted guilt. This distinction was spelled out clearly in Libyan letters to the UN Security Council. In a BBC radio interview in 2004, the Libyan prime minister, Shukri Ghanem, underlined once again that compensation had been paid because this was the ‘price for peace’ and to secure the lifting of sanctions. When asked if Libya did not accept guilt, he said: ‘I agree with that.’

If the court that convicted al-Megrahi now reverses its decision, then Libya would clearly have a case for demanding its money back. Since recovering the compensation from the relatives would be unthinkable, it is more likely Libya would pursue those responsible for the miscarriage of justice. ‘What they might try to do,’ Black suggests, ‘is to recoup the money from the British and American governments, who after all are responsible for the initial farce and the wrongful conviction in the first place. They paid that money on the basis of a miscarriage of justice perpetrated by the British courts.’ Al-Megrahi’s acquittal on appeal would not ipso facto make a compelling case for Libya to have its money back: even if guilt can’t be proved beyond reasonable doubt – the test of the criminal burden of proof – it could still be shown that it was more likely than not (which is the burden applied to civil cases such as compensation cases). If Libya paid the money for purely political reasons then, one could argue, it might have to live with that decision. When I asked the Foreign Office whether Britain would consider reimbursing Libya in the event of al-Megrahi’s exoneration, a spokesman declined to comment.

If al-Megrahi is acquitted, he will also have the right to sue for wrongful conviction. He could claim compensation to the tune of several tens of thousands of pounds. The Crown Office, which is headed by the Scottish lord advocate, is responsible for what happened, which means that al-Megrahi would sue the Scottish Executive. The lord advocate is now one of the ‘Scottish ministers’, whereas previously he – now she – was one of the law officers of the UK Government. The Scottish Executive might refuse to pay, blaming Westminster. Westminster, meanwhile, would argue that Lockerbie is and always has been a Crown Office matter and that the UK government has no say. A political storm is on its way, especially now that the SNP is in charge in Scotland.

Since the case against al-Megrahi was so weak, it is hard to understand how the judges who presided over the trial could have got it so wrong. Black has a view:

It has been suggested to me, very often by Libyans, that political pressure was placed upon the judges. I don’t think for a minute that political pressure of that nature was placed on the judges. What happened, I think, was that it was internal politics in Scotland. Prosecutions in Scotland are brought by the lord advocate. Until just a few years ago, one of the other functions of the lord advocate in Scotland was that he appointed all Scottish judges. I think what influenced these judges was that they thought that if both of the Libyans accused are found not guilty, this will be the most fiendish embarrassment to the lord advocate.

The appointment system for judges has changed since the trial, but another controversial aspect of the al-Megrahi case may also be re-examined: the policies on disclosure. Compared to almost any other similar criminal justice system, Scotland does not have a proper system of disclosure of information. In England and Wales, the Crown has to disclose all material to the defence, according to rules set out in statute. In Scotland the Crown is allowed to modify or withhold evidence if it considers that withholding is in the ‘public interest’. At least the Scottish criminal justice system doesn’t have the death penalty.