Read me my Rights

THE LOCKERBIE CONVICTION  – FACT AND FICTION

PART 1 – CONSPIRACY THEORIES

Introduction

Twenty four years have elapsed since the conviction of Abdelbaset Ali Mohmed Al Megrahi for his part in the murderous conspiracy which caused the death of 270 innocent people on 21 December 1988. The Trial Court verdict and the two Court of Appeal judgements upholding that verdict have been subjected to a great deal of criticism in the press and media. They have frequently been castigated.  In a post on his blog on 9 May 2023 Professor Robert Black said of the Megrahi conviction that  “a shameful miscarriage of justice has been perpetrated and that the Scottish criminal justice system has been gravely sullied.” The Professor’s blog regularly quotes articles by other commentators in the same vein. Similar attacks on the verdict regularly appear in the press and media. We can expect more of the same in the coming year.  In this two part article I will show that the vast majority of these criticisms have been discredited as a result of exhaustive investigations carried out by an independent body. I will also explain how the most recent Appeal Court decision significantly strengthens the Crown case.

 On 15th January 2021, for the second time, a bench of five appellate judges unanimously upheld the conviction of Mr Megrahi. This was the third appeal in all and the second to run its full course (Mr Megrahi abandoned the other in 2009).  

Crucially, this second appeal judgement follows a referral of the case to the Court by the Scottish Criminal Case Review Commission (SCCRC). The SCCRC is entirely independent of the courts, the prosecution authorities and the police. Its function is to act as a gatekeeper enabling cases to be sent back to the Appeal Court for reconsideration if the Commission determines that there may have been a miscarriage of justice. It is not their function to decide on the guilt or innocence of the applicant.  

According to  research published in 2019 –  The SCCRC and the Appeal Court at 20 Years, (Callander and Leverick 2019 Juridical Review 4) 51% of cases referred by the Commission in the first twenty years of its existence to 2019 resulted in a conviction being quashed. It follows that there is nothing unusual about the fact that in this case the Appeal Court upheld the conviction despite the SCCRC’s referral. 

In a properly functioning legal system it is vitally important that court rulings and verdicts are open to public scrutiny. It is a general principle of our constitutional law that justice is administered by the courts in public. As the Lord Justice General (Rodger) said in BBC Petitioners 2002 JC 27 (Paragraph 12)  – “This promotes not only the interests of the individual accused by ensuring that others can see whether he is being tried fairly but also the interests of the wider public who can see and, if appropriate, criticise, applaud or castigate the conduct of their courts.”

The right to criticise has concomitant responsibilities. Those who criticise the judgements and the proceedings as a whole should be sure to build their claims on solid factual ground. This is important for two reasons. First and foremost out of sympathy and respect for the many living victims of  this atrocity, the relatives, loved ones, friends and colleagues of the 270 murder victims. The  least that the living victims deserve is to be spared from ill-informed claims about the court verdict and judgements. Second, public confidence in the criminal justice system is increasingly fragile. The public interest is not served when that confidence is further eroded by unjustified criticism. As we shall see, for many years now numerous inaccurate allegations about the Crown case and the verdict have been widely reported as fact. 

The SCCRC Investigations

The SCCRC have an impressive toolbox of powers with which they can pursue a thorough investigation into all aspects of a case. In particular they can; compel the Crown, the police and other persons to disclose documents and other information to them; they can take statements from any person who they judge to be of interest to their investigations and they can commission their own expert evidence on material points. They can also investigate matters not raised with them by the convicted person.

 All of these powers were extensively used by the Commission in this case over two lengthy investigations (2003 to 2007 and 2018 to 2020) during which they considered multiple challenges to the Crown case. The results of their work are set out in two lengthy Statements of Reasons totalling 1200 pages plus appendices. The Commission’s grounds for referring the case on each occasion are narrow in compass by comparison with the extremely wide ranging allegations which were placed before them on behalf of Mr Megrahi. The second SCCRC referral in 2020 is essentially a refined (reduced) version of the first one in 2009. It boiled down to two possible grounds of challenge, the second of which comprised two separate instances of non-disclosure of information to the defence. 

In their application which resulted in the SCCRC’s referral in 2007 Mr Megrahi’s legal team threw the kitchen sink at the Crown case. The SCCRC took 16 chapters and over 480 pages of its Statement of Reasons (SOR) to set out its reasons for rejecting claims ranging from planting of evidence (several instances) to defective representation by the defence lawyers calling at incompetent forensic work, incriminations of third parties, non-disclosure of evidence (several instances) and insufficiency of evidence on the way. A redacted version of this SOR was published by a national newspaper in 2012 and is available on the internet. 

The 2020 referral followed upon a two year investigation which considered and rejected four grounds of review. Announcing the SCCRC’s second referral in a press release on 11 March 2020 the Chairman said “This is the second time that the Commission has carried out what I believe has been a rigorous and independent review of this particular conviction, and we note that since our last review further information has become available, including within the public domain, which the Commission has now been able to consider and assess.” Regrettably the full 2020 Statement of Reasons (SOR) is not yet in the public domain but the press release does contain a brief summary of the rejected allegations and the grounds for referral.

There are three key points to take from the SCCRC investigations. First, the scope of the 2020 Appeal was determined by the SCCRC who, over two thorough investigations, weeded out most of the allegations of miscarriage of justice as being unworthy of consideration by the Appeal Court. In an article in the Scotland On Sunday newspaper posted on Professor Robert Black’s blog on 31 January 2021 Dr Jim Swire  is reported to have “accused the Crown Office and “certain leaders” in Scotland’s legal profession of following a “readily visible course” based on the premise that the Netherlands court was infallible.“  He is reported to have told the newspaper –  “Appeals have managed to avoid or ignore many of the aspects of the [Trial Court] evidence in which failures are self-evident, and have never fully addressed some of the further pieces of evidence which have emerged since.” With respect, Dr Swire has missed the all important point that the SCCRC has sifted the mass of allegations including many based on evidence which post-dates the trial. The Commission certainly did not regard the Netherlands court as infallible. On the contrary it concluded that the court may have reached a verdict which no properly instructed jury could have returned.  The Court did not avoid or ignore anything that was placed before it. 

  Professor Robert Black quoted in an Article from the Times and posted by him on his blog on 16 Jan 2021, the day after the most recent appeal was refused, said it was “a matter of grave concern that the most recent appeal had been so narrowly restricted to certain legal areas.” This contention fails to recognise the importance of the SCCRC’s role or the validity of its painstaking and impartial work on this case over more than five years. Also, the authors of the 2019 study, following a careful analysis of cases referred over a twenty year period, concluded that there was no question of the SCCRC being overly deferential to the Appeal Court. There is no suggestion that the Commission were unduly cautious in determining what should be referred for inclusion in a fresh appeal.

Secondly, the comparison between the narrow grounds for referral put forward by the SCCRC and the rejection by them of a mass of other allegations seriously undermines the claim that Mr Megrahi suffered a grave injustice which has sullied the reputation of the Scottish legal system. In the Scotland On Sunday article Dr Swire is quoted as saying that the Crown Office and the other unspecified leaders of the legal profession (the Appeal Court judges?) ignored or avoided defects in the trial court evidence and new exculpatory evidence because “they wish to conceal the profound failings within their system and its dangerous opacity to criticism, in order that damage to its reputation shall be minimised.” That simply does not stack up in relation to the large body of allegations rejected by the SCCRC. Surely it cannot be suggested that they are complicit in a scheme to whitewash the verdict? In relation to the few points which the SCCRC did refer to the Appeal Court the public can judge for themselves whether the Court’s reasons for refusing the appeal make sense by reading their opinion. There is nothing opaque about their judgement.

My third point about the importance of the SCCRC referrals is that they put paid to a whole series of allegations about Mr Megrahi being framed by evidence tampering and the like. The Commission’s SOR in 2007 is notable for the number of allegations of this sort that it carefully investigated and rejected. At paragraph 4.10 of the SOR the SCCRC had this to say about these allegations – “at this stage it is worth recording that, despite their seriousness, many of the allegations were speculative, unfocused and unsupported by proper evidence………Nevertheless, given the nature of the allegations, the Commission considered it important to investigate fully the matters raised in the submissions. This became all the more necessary, in the Commission’s view, when some of the allegations later featured in the media where they were reported seemingly as fact.” There has always been an imbalance in the press and media coverage of the case. This observation from the SCCRC  partially explains why that is the case. It is highly regrettable that this perceptive comment was not published at all until the 2007 SOR was posted on the internet in 2012. Even then it received next to no press or media attention. The work done by the SCCRC shows that the conspiracy theories which have circulated for years are false have largely gone unnoticed.

These theories persist. On 21 Jan 2021 Professor Black posted another article written by Steve James which contained the following “….The reason for the appeal being restricted to Megrahi’s identification by Gauci is increasingly clear. Any broader querying of the original verdict threatens to bring down the house of cards that is the legal frame-up of Megrahi.” No evidence is offered in support of this assertion. It flies in the face of the SCCRC’s findings. The appeal was restricted because the Commission did not find anything else worthy of a reference to the Appeal Court. As a result of these comprehensive investigations by the Commission the public can be reasonably confident that those egregious allegations are unfounded. 

PART 2 – THE CURRENT POSITION

As matters stand in the aftermath of the latest appeal and the 2020 SCCRC referral the most prominent criticisms of the verdict in the public domain concern two particular chapters of the case. Both of these were carefully examined by the SCCRC. It concluded that they did not merit referral to the Appeal Court.

The Timer Fragment

The first is the provenance of the timer fragment (known as PT/35(b)) which was a key part of the crown case at trial. The timer fragment was discovered by a forensic scientist in the course of his examination of a bomb damaged piece of a shirt which had been in the suitcase containing the bomb when it exploded. The timer fragment was from one of a batch of MST-13 timers manufactured and supplied by the Swiss company MEBO to fulfil an order placed with them by the Libyan secret service. Mr Megrahi had business links with one of the principals of MEBO, a man called Edwin Bollier, and with the Libyan officers who ordered and took delivery of the timers.

On 20th January 2021 Professor Black posted an article written by Steve James which contained allegations that no explanation had been offered (by the prosecution presumably) that evidence concerning the discovery of PT/35(b) in the wreckage of the plane and the records relating to that discovery had been doctored. Mr James has overlooked the fact that these allegations, amongst many others concerning PT/35(b), were thoroughly examined by the SCCRC and rejected by them in the 2007 SOR.

 As a result of the allegations made by the defence lawyers and “especially in light of the speculation that has persisted in the media” the Commission decided to review all aspects of the evidence about MST-13 timers and MEBO. In chapter 8 of that SOR each of these allegations is considered and rejected in turn. The final conclusion is that the SCCRC did not believe that a miscarriage of justice had occurred in connection with PT/35(b). 

The Commission re-visited the issue in their second review. In the Press Release accompanying the 2020 referral the SCCRC Chairman revealed that one of the broad grounds of possible referral considered and rejected by the Commission in their second review concerned PT/35(b). The SCCRC carefully considered and rejected allegations that, prior to the trial, the Crown had failed to disclose to the defence information about the difference in metallurgy between PT/35(b) and certain “control” circuit boards. These were used to prove that PT/35(b) was part of an MST-13 timer of the sort supplied to the Libyans by MEBO. The SCCRC also carefully considered forensic evidence which post-dated the trial and which was said by Mr Megrahi’s representatives to cast “serious doubt on the trial court’s conclusion that PT/35(b) was part of the MEBO-produced MST-13 timer.” The Commission was not persuaded that this evidence called into question the Trial Court’s conclusion that PT/35(b) was part of the MEBO produced MST-13 timer used to trigger the bomb.

In their book entitled “The Lockerbie Bombing – A Father’s Search For Justice” (Birlinn Press 2021) Dr Jim Swire and Peter Biddulph discuss some of the evidence about the provenance of PT/35(b) including some of the evidence which post-dates the trial. They express the opinion that the fragment could not have been one of the batch which had been supplied by MEBO to Libya and that accordingly the Crown case is fatally flawed. Their analysis is short (under 5 pages) and highly selective. It omits any reference to the large body of evidence, including scientific evidence, which questions the accuracy of their claims. This is in stark contrast to the detailed analysis carried out by the SCCRC who devoted a whole chapter of the 2020 SOR (90 pages) to the subject carefully examining the detail of all the pre and post trial evidence. The SCCRC concluded that there is certainly no question that the evidence obtained post-trial (relied on by Dr Swire and Mr Biddulph) may be said to establish that this fragment was not part of one of the timers supplied by MEBO to the Libyans.

In his article Mr James asserted that PT/35(b) –  “has subsequently been proved NOT to be part of a consignment of timers admittedly sold to Libya by Mebo-AG.” In another article by Mr James posted on Professor Black’s blog on 21st January 2021 Mr James said –  “The SCCRC did not consider (…) analysis of the metallurgical characteristics of the alleged bomb timer–proving it was not part of a batch sold to Libya….”   The SCCRC findings show that Mr James is wrong about both these points. 

The Suitcase

At the trial the crown proved that the suitcase containing the bomb travelled as an unaccompanied item of baggage from Luqa Airport in Malta to Frankfurt. From there it was loaded onto a Pan-Am feeder flight to London and then on to the flight on which the bomb exploded. At the trial the defence claimed that the bomb was infiltrated onto a plane for the first time at Heathrow and that this put paid to the Crown position that it was dispatched from Malta. The Trial Court explained their reasons for rejecting the defence case in their written judgement. The defence persisted with this at the first appeal and the Appeal Court again rejected their claim after hearing additional evidence about it.

In his article posted by Professor Black on 21 January 2021 Steve James said that “The SCCRC did not consider……devastating evidence of the bomb suitcase entering the luggage system at Heathrow Airport, London, as grounds for appeal.” He is wrong about that.

 In the press release in March 2020 which accompanied their second referral  the SCCRC revealed that they had rejected yet another allegation that the bomb was first infiltrated into the airline luggage chain at Heathrow. According to the SCCRC the allegation was based on “a theory derived from the work of the organisation ‘Justice for Megrahi’. That theory was largely based on research conducted by Dr Morag Kerr published by her in 2013 in a book entitled “Adequately Explained by Stupidity.”  Once again the SCCRC carried out a thorough examination of the allegation taking account of all the relevant evidence including information which was not available to Justice for Megrahi. The SCCRC concluded that “…..it was not arguable that the Justice for Megrahi theory could show conclusively that the bomb had entered the airline luggage in Heathrow.”   On 31 January 2022 Professor Black posted that Dr Kerr’s book “fatally undermined” the Lockerbie conviction. The SCCRC analysis shows that Professor Black is wrong about that.

 As we shall see the Crown case that the bomb was infiltrated at Luqa is considerably bolstered by the evidence that Mr Megrahi procured luggage tags at that airport shortly before the plane carrying the bomb took off for Frankfurt.

The 2021 Appeal Court Judgement

One striking feature of the 2021 appeal court judgement is that it fortifies the prosecution case by adding another finding of fact supportive of Mr Megrahi’s guilt. The Court held that diary entries made by Mr Megrahi’s co-accused (who was acquitted by the trial judges) were admissible evidence against Mr Megrahi and had been wrongly excluded by the trial judges in their consideration of his guilt. The diary entries are about obtaining luggage tags for Mr Megrahi. One of them is dated 15 December 1988, that is just 6 days before the bomb exploded on Pan-Am flight 103. The diary evidence strongly supports the inference that the co-accused obtained luggage tags for Mr Megrahi which enabled him to play a hand in despatching the suitcase which contained the bomb as an unaccompanied bag onto the flight from Luqa Airport. The Appeal Court said at paragraph 72 of their judgement  – As the [trial court]  put it, this evidence was capable of having a “sinister connotation, particularly in the absence of any form of explanation”. This must be so given that the suitcase must have had an interline tag attached to it to enable it to reach PA 103 unnoticed. This can be combined with the fact that the co-accused had been the station manager for LAA until October 1988. Mr Megrahi was head of airline security within the Libyan JSO. They had both travelled together to Malta from Tripoli on 20 December. Mr Bollier had been in Tripoli to sell timers between 18 and 20 December. On the following morning at 7.11am, on the day of the ingestion of the bomb, a call was made from the hotel in which Mr Megrahi was staying in Sliema to the co-accused’s flat. These several latter factors added to the circumstantial case. That case would have been substantially stronger had the evidence of the luggage tags been taken into account, as it should have been.”

This new finding chimes very well with the other findings of fact which point to Mr Megrahi’s guilt; his involvement in the Libyan secret service in which his duties involved airline security;  his contacts with the principal of MEBO and the Libyan officers who took delivery of MST-13 timers from the Swiss company; his furtive use of a false passport to travel incognito (he thought) from Libya to Malta the day before the bomb was despatched and to travel back to Libya very shortly after the plane carrying the bomb took off from Luqa; his qualified (resemblance) identification by a Maltese shopkeeper Tony Gauci as the person who purchased several items of clothing which were in the suitcase when the bomb exploded. 

Conclusion

I declare an interest as senior crown counsel in the second and third appeals. I am not seeking to persuade anyone that Mr Megrahi was correctly convicted although that is my personal view. I believe that anyone taking an interest in this most emotive of cases should exercise their own judgement on this based on a proper understanding of the case. That can be acquired by reading the trial court and Appeal Court judgements which are available online. An even deeper understanding  can be obtained by reading the SCCRC material which is in the public domain. As I have endeavoured to explain in this article the SCCRC papers are of crucial importance because they show that Mr Megrahi was not framed and that the courts most certainly have not covered up a miscarriage of justice.