Lockerbie: Megrahi granted appeal

On 28 June 2007, the Scottish Criminal Cases Review Commission referred the case of Abdelbaset Ali Mohmed Al Megrahi to the Scottish High Court (see the Commission press release [1]).

On 31 January 2001, Megrahi was convicted of the Lockerbie bombing by three Scottish judges sitting in The Netherlands. His fellow accused, and fellow member of the Libyan intelligence service, Al Amin Khalifa Fhimah, was acquitted. In March 2002, Megrahi’s appeal against conviction was turned down by another five Scottish judges. He has now been granted a second appeal.

Megrahi’s conviction was an obvious miscarriage of justice. That much was clear from the written judgement delivered by the three Scottish judges on 31 January 2001 [2]. In it, the judges related the prosecution’s account of how the Lockerbie bombing might have been carried out – by introducing an unaccompanied bag containing the bomb into the international airline baggage system at Luqa airport in Malta – and concluded that it was done that way, and that it was done by Megrahi. But there is no evidence that the bomb was introduced at Luqa airport and no conclusive evidence connecting Megrahi with the bomb.

It is inconceivable that the three intelligent men who put their names to the judgement believed that the prosecution had proved that Megrahi was guilty beyond reasonable doubt. As my pamphlet The Lockerbie trial: A perverse verdict [3] demonstrates, reasonable doubt leaps out of it all over the place. He should not have been convicted on the evidence put before the court.

The Scottish prosecuting authorities should never have indicted the two Libyans in the first place.  They did so without investigating the credibility of Abdul Majid Giaka, the CIA asset who was their “star witness” and whose credibility was destroyed during the trial.  Nevertheless, as an act of trade union like solidarity with their fellow Scottish legal professionals, who had made such a cockup of the prosecution of this case of geopolitical importance, the three Scottish judges convicted Megrahi. Five others turned down his appeal in March 2002.

The appeal

A strange feature of Megrahi’s appeal was that his lawyer did not contend that the three trial judges had drawn an unreasonable conclusion from the evidence – which was obvious from their written judgement (see my article Lockerbie appeal lost [4]). The legal basis for the appeal was Section 106 of the Criminal Procedure (Scotland) Act 1995, under subsection 3(b) of which an appeal may be made against

“any alleged miscarriage of justice, which may include such a miscarriage based on … the jury’s having returned a verdict which no reasonable jury, properly directed, could have returned”.

None of the grounds for appeal submitted by Megrahi’s lawyer invoked Section 106(3)(b) and contended that the verdict of the trial court was one that no reasonable jury could have returned. Why his lawyer failed to appeal on such obvious grounds is mystery. There was, of course, no guarantee that, had such an appeal been made, the five appeal court judges would have convicted their three trial court colleagues of having acted unreasonably in bringing in a guilty verdict. However, by specifically ruling out an appeal on these grounds, his lawyer ruled out that possibility. As the appeal court judges noted in their written judgement:

“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.” [5]

The first ground

However, Megrahi’s lawyers did make submissions under section 106(3)(b) to the Scottish Criminal Cases Review Commission. One of those has now been accepted by the Commission as the first of four grounds for the referral of the case to the Scottish High Court:

“A number of the submissions made on behalf of the applicant challenged the reasonableness of the trial court’s verdict, based on the legal test contained in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Commission rejected the vast majority of those submissions. However, in examining one of the grounds, the Commission formed the view that there is no reasonable basis in the trial court’s judgment for its conclusion that the purchase of the items from Mary’s House, took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court’s conclusion that the applicant was the purchaser. Likewise, the trial court’s conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant’s case.” (see [1], Paragraph 5.1)

The trial court’s finding that the purchase of the items from Mary’s House took place on 7 December 1988 – and not on another date – was a crucial step on the way to finding Megrahi guilty, for the following reasons.

It was established beyond doubt at the trial that the explosive device which brought down Pan Am flight PA103 over Lockerbie was contained in a Samsonite case and surrounded by clothes which were bought in Malta, at Mary’s House in Sliema (see the written judgement [2]). The prosecution sought to prove that the clothes had been purchased by Megrahi on 7 December 1988. In fact, as we will see, the evidence presented pointed to the purchase having taken place a fortnight earlier on 23 November 1988.

Tony Gauci, who owned Mary’s House along with his brother Paul, gave credible evidence that the clothes had been purchased shortly before Christmas 1988. He even recalled that he had been alone in his shop because his brother Paul had been at home watching football on television. This narrowed the possible purchase dates to Wednesday 23 November 1988 or Wednesday 7 December 1988 in the early evening. Crucially, Gauci also recalled that it was raining when the purchaser came into the shop and that he bought an umbrella, which he put up when he left the shop. (Evidence from the crash site indicated that a black nylon umbrella had been in the Samsonite case along with the bomb).

The rain in Sliema

Major Mifsud, Chief Meteorologist at Luqa Airport in 1988, appeared as a witness for the defence at the trial. He gave evidence that, whereas there was no rain at Luqa (which was about five kilometers from Sliema) on 7 December 1988, the situation was very different a fortnight earlier on 23 November 1988. At Luqa there was light intermittent rain on that day from noon onwards which by 6pm GMT had produced 0.6 of a millimetre of rain and he thought that the situation in the Sliema area would have been very much the same. Despite this, the judges concluded that “the date of purchase was Wednesday 7 December” (see Paragraph 67 of their judgement [2]).

When I read the judgement for the first time, I was amazed that the judges had come to this conclusion, which ran counter to the evidence – and I was puzzled as to why they felt the need to conclude that the purchase date was 7 December 1988 rather than 23 November 1988. What difference did it make when the bomb was, allegedly, put on an aircraft at Luqa on 21 December 1988? Then in Paragraphs 87 & 88 the reason became clear:

“The first accused [Megrahi] travelled on his own passport in his own name on a number of occasions in 1988, particularly to Malta on 7 December where he stayed until 9 December …

“We have already accepted that the date of purchase of the clothing was 7 December 1988, and on that day the first accused arrived in Malta where he stayed until 9 December. He was staying at the Holiday Inn, Sliema, which is close to Mary’s House.”

The purchase date had to be 7 December 1988 in order to implicate Megrahi in the purchase.

As the judgement freely admits, Tony Gauci never made a positive identification of Megrahi as the purchaser of the clothes. At various times, he picked out from photographs three different people who, he said, resembled the purchaser.

So, if the judges had concluded in accordance with the evidence that the purchase date was 23 November 1988 rather than a fortnight later, it would have been very difficult for them to conclude that Megrahi was the purchaser – since there was no evidence that he was in Malta on that date.

And if Megrahi could not be identified as the purchaser of the clothes surrounding the bomb, it would have been impossible for them to find him guilty, since there was no other evidence connecting him to the bombing, after Giaka was discredited. The judges’ unjustified conclusion that “the date of purchase was Wednesday 7 December” was therefore crucial to their finding him guilty.

Over six years later, the Commission has now “formed the view that there is no reasonable basis in the trial court’s judgment for its conclusion that the purchase of the items from Mary’s House, took place on 7 December 1988”, a conclusion that was obvious to any reasonable person reading the trial judgement on 31 January 2001. Meanwhile, Megrahi has spent an additional six and half years in prison.

(The Commission’s full statement of reasons for referring the case to the Scottish High Court extends to over 800 pages and is accompanied by a further thirteen volumes of appendices. The Commission has spent over £1.1 million on reviewing the case.)

Other grounds

The Commission’s second ground for referring the case to the Scottish High Court adds further weight to the conclusion that the purchase of the clothes in Mary’s House did not take place on 7 December 1988. It says:

“New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in the area of Sliema in which Mary’s House is situated. In the Commission’s view, taken together with Mr Gauci’s evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant [Megrahi] was in Malta.”

As I have said, Gauci never made a positive identification of Megrahi as the purchaser of the clothes surrounding the bomb. The Commission’s other two grounds for referral further undermine this already weak evidence of “identification”.

Britain and the US are now best friends with Libya, so the political climate now favours the acquittal of Megrahi. Furthermore, the additional evidence in grounds 2, 3 and 4 makes it possible for the appeal court judges to acquit Megrahi without indicting their judicial colleagues in the trial court for acting unreasonably, as they most certainly did. These considerations lead me to conclude that Megrahi’s appeal will be upheld.

Unjustified indictments

The Scottish prosecution authorities should never have indicted Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah in November 1991. They failed in their simple duty to ensure that their key witness was credible before they issued the indictments. This gross incompetence had consequences of geopolitical importance, leading as it did to economic sanctions being imposed on Libya for most of the 90s at the behest of the US/UK in order to force Libya to hand over the accused for trial.

(The indictment of the two Libyans in November 1991 came as a great surprise. Up to that point, it was widely believed that the Lockerbie bombing was the work of Palestinians acting on behalf of Iran, in revenge for the shooting down in the Persian Gulf of an Iranian airliner by the US guided missile destroyer Vincennes, which had killed 350 pilgrims on their way to Mecca. This atrocity happened in July 1988 a few months before the bombing. But in November 1991 the world was suddenly asked to believe that Libya was responsible for the bombing, and that the action was in retaliation for the US bombing of Tripoli and Benghazi on 14 April 1986 from airbases in Britain, when about 100 civilians were killed, including Gadaffi’s 2-year-old adopted daughter.)

The unjustified indictment of the two Libyans was followed immediately by highhanded demands by the UK and US governments that Libya hand over the accused forthwith for trial either in Scotland or in the US.

At the time, there were no extradition treaties in force between Libya and the UK or Libya and the US. And, Libyan internal law, in common with the law of many countries, did not permit the extradition of its own nationals for trial overseas.

The government of Libya asked that the matter be settled under the civil aviation Convention concluded in Montreal in 1971, to which all three governments were signatories. That Convention provides that a state in which a person accused of terrorist offences against aircraft is resident has a choice: either hand over the accused for trial in the courts of the state bringing the accusation, or bring the accused to trial in its own domestic courts.

The Libyan authorities expressed a willingness to follow the latter course. The two accused were arrested and a Supreme Court judge appointed as an examining magistrate to consider the evidence and prepare the case against them. But the US and UK governments refused to make available to the examining magistrate the evidence they claimed to have gathered against the accused. Compliance with international law on aviation crime was not enough for the US/UK. Nothing short of handing over the accused would do.

To force Libya’s compliance, the US/UK persuaded the UN Security Council to pass a resolution 731 [6] on 21 January 1992, which strongly deplored Libya’s failure to comply with US/UK requests that the accused be handed over. This was followed by a resolution under Chapter VII of the UN Charter imposing economic sanctions on Libya, justified by the absurd proposition that Libya’s failure to extradite the accused constituted a threat to “international peace and security”. This resolution, 748 [7] passed on 21 March 1992, required Libya to hand over the accused by 15 April 1992 and, failing that, imposed specified economic sanctions (including trade and air transport embargos) on Libya. Understandably, Libya did not comply and sanctions duly came into effect.

Trial in a third country

In 1993, Robert Black QC, a professor of law at Edinburgh University (and a native of Lockerbie), suggested that the accused be tried in a third country, The Netherlands, for instance. He proposed that a Scottish Court be established in a third country to try the accused under Scottish law, with three Scottish judges acting as both judge and jury. As early as January 1994, the two accused (and the Libyan government) accepted this proposal, but for nearly five years British and American governments vehemently opposed it. However, in part due to the intervention of Nelson Mandela, they finally accepted it and on 5 April 1999 the two accused surrendered themselves for trial before a Scottish Court at Camp Zeist in The Netherlands.

The Libyan government acted reasonably in this matter throughout. In 1991, they were happy to operate within international aviation law as it then stood but the UK and the US were not. Nevertheless, the Libyan government – and the accused – were prepared to compromise and accept trial under Scottish law in a third country. That could have begun five years earlier had the UK and the US been prepared to accept that reasonable proposal in 1994 rather than 1999.

Libya never admitted responsibility

The UN imposed economic sanctions on Libya were suspended in April 1999 when the two Libyans were handed over for trial in The Netherlands, but US-imposed sanctions remained in force and Libya was still on the US State Department list of states that sponsor terrorism. The extradition and conviction of Megrahi wasn’t a sufficient condition for the US/UK to allow Libya back in from the cold – in addition, Libya was required to accept responsibility for the Lockerbie bombing, to pay compensation to the families of its 270 victims and to renounce “terrorism”.

A deal was arrived at in August 2003, in which Libya agreed to pay $2.7 billion compensation to the families of the Lockerbie victims ($10 million to each family), even though it did not accept responsibility for the bombing. However, a verbal formula was agreed with the US and UK governments, which allowed them to give the impression to their people (and in particular to the victims’ families) that Libya had accepted responsibility for the bombing. In reality, Libya never did.

The key element in this formula was that Libya formally stated that it accepts responsibility for the actions of its officials.  The formula first saw the light of day in a letter by Libya to the President of the Security Council dated 15 August 2003, the text of which is appended to a press statement issued by UK Foreign Office Minister, Denis MacShane, on the same date [8]. This letter triggered the passing of Security Council resolution 1506 [9] on 12 September 2003, which lifted UN sanctions against Libya permanently.

All the letter says about the Lockerbie bombing is that Libya

“has facilitated the bringing to justice of the two suspects charged with the bombing of Pan Am 103, and accepts responsibility for the actions of its officials” (Paragraph 3)

That doesn’t say anything about the guilt or otherwise of Megrahi. It is generally believed that Megrahi and his fellow suspect were members of the Libyan intelligence service and therefore Libyan “officials”, but the letter doesn’t even admit that. For Libya to accept responsibility for the bombing, it would have to state clearly that Megrahi was guilty of the bombing, and that he was acting on behalf of the Libyan state when he carried it out.  The letter did neither of those things.

Libya was prepared to pay compensation to the victims in order to arrive at a final settlement with the US/UK, which led to the lifting of both UN and US-imposed sanctions, and the removal of Libya from the US list of states that sponsor terrorism. However, it wasn’t prepared to accept responsibility for the Lockerbie bombing, presumably because it had nothing to do with it.  The UK and the US had to settle for a formula that could be used to give the impression that Libya had accepted responsibility, so that the victims’ families would get compensation from Libya.

The formula was a key element in the settlement.  It even appears in resolution 1506, which lifted UN sanctions. Resolution 1506 welcomes Libya’s “acceptance of responsibility for the actions of Libyan officials” [9], but doesn’t say that Libya had accepted responsibility for the Lockerbie bombing.  Speaking after the vote on resolution 1506, the US ambassador to the UN said that Libya “has formally stated that it accepts responsibility for the actions of its officials” [10]; again, he didn’t say that Libya accepted responsibility for the bombing; he just repeated the agreed formula.

Foreign Office lies

Denis McShane’s statement of 15 August 2003 announced the UK’s willingness to support the lifting of UN sanctions against Libya. It begins:

“In 1988, the worst terrorist incident on UK territory took place over Lockerbie. 270 people were killed when Pan Am 103 was blown out of the sky. Libya has today accepted responsibility for that outrage.” [8]

The last sentence is simply a lie.  But, happily for the Government, the press didn’t read the Libyan letter to the President of the Security Council, which was appended to the statement, and discover that McShane had told a lie.  It was universally reported that Libya had accepted responsibility for the Lockerbie bombing, as the Government wished.

Jack Straw repeated the lie in a press statement on 12 September 2003 [11], welcoming the passing of resolution 1506, and once more the press obliged by reporting the lie as fact.

Libya “bought peace”

The Government’s deception of the public was successful thanks to the press, which printed what it was told without question.  Strangely, a few months later the Libyan Prime Minister, Shukri Ghanem, lifted the curtain on this deception in an interview on BBC Radio 4’s Today (see BBC transcript [12]). In this interview, on 24 February 2004, he blurted out the awful truth that Libya had not accepted responsibility for the Lockerbie bombing (nor for the killing of policewoman Yvonne Fletcher in London in April 1984).

As regards the Lockerbie bombing, he said that Libya had paid compensation in order to buy peace, not because it was guilty.  The conversation went as follows:

Q: Another concern in Britain, from the relatives of those killed in the Lockerbie bombing, is that Libya has not actually apologised for what happened, it has simply paid, or agreed to pay, compensation. Why has Libya not actually apologised, said that you’re sorry that you were behind this act?

A: Because it is a case that we came to a conclusion that we reached an agreement in which we feel that we bought peace. We, after a while and after the sanctions, and after the problems we have faced because of the sanctions, the loss of money, and we thought that it was easier for us to buy peace, and this is why we agreed on compensation. Therefore we said, let us buy peace, let us put the whole case behind us and let us look forward.

Q: So payment of compensation didn’t mean any acceptance of guilt?

A: I agree with that, and this is why I said we bought peace.

An interesting question arises: if, as I expect, Abdelbaset Ali Mohmed Al Megrahi is acquitted on appeal, will Libya be compensated by the US/UK for the $2.7 billion it paid over to buy peace and for the economic damage done by many years of unjustly imposed economic sanctions?

David Morrison

Labour & Trade Union Review

28 July 2007

References

[1] www.sccrc.org.uk/ViewFile.aspx?id=293

[2] www.scotcourts.gov.uk/library/lockerbie/docs/lockerbiejudgement.pdf

[3] www.david-morrison.org.uk/libya/lockerbie-perverse-verdict.pdf

[4] www.david-morrison.org.uk/libya/lockerbie-appeal-lost.htm

[5] www.scotcourts.gov.uk/library/lockerbie/docs/lockerbieappealjudgement.pdf

[6] daccessdds.un.org/doc/RESOLUTION/GEN/NR0/010/90/IMG/NR001090.pdf

[7] daccessdds.un.org/doc/RESOLUTION/GEN/NR0/010/90/IMG/NR001090.pdf

[8] see www.fco.gov.uk

[9] daccessdds.un.org/doc/UNDOC/GEN/N03/498/81/PDF/N0349881.pdf

[10] www.david-morrison.org.uk/scps/20030912.pdf

[11] see www.fco.gov.uk

[12] news.bbc.co.uk/go/pr/fr/-/1/hi/uk_politics/3517101.stm