Kenneth Roy The company I keep: in league with a…

18.08.11
No. 440

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Iona garden
Photograph by
Islay McLeod

Why isn’t

he dead

yet?

Robert Forrester

Here we go again. As the anniversary of Abdelbaset Ali Mohmed al-Megrahi’s compassionate release approaches, we enter what has become the annual ‘Lockerbie Bomber’ blood fest. On the menu: politicos on both sides of the pond bewailing the fact that the man isn’t dead; journalists, editors and pro-Zeist commentators attempting to stir up ill-informed public opinion with their equally ill-informed views, the Scottish government on the defensive, etc, etc.

     And, one must ask, amongst these worthies, have any even bothered to read the Zeist trial transcript or the judgement, let alone done any further and deeper research into the trial and the investigation into the tragedy of Lockerbie? Doubtful. 
     The evidence against Mr al-Megrahi was entirely circumstantial. The fact that he was selected as the candidate is based on a determination to find a best fit for the frame and to build a case around this construct to the exclusion of eliminating any flies in the ointment by making assumption upon supposition upon thin air. Such is not the stuff of guilt beyond reasonable doubt. This is not justice, it is guess work. Guess work which provides a convenient fix, condemns and vilifies an individual (and his nation), dupes the bereaved and the public at large, and cripples the reputation of the Scottish criminal justice system.
     For those who remain in the dark on the issue, a brief overview. Only a bomber as high as a kite on LSD would ever contemplate doing as the judges assert. Apparently, the bomb which brought down Pan Am103 was placed as unaccompanied luggage on Air Malta flight KM180 from Luqa, transferred to Pan Am 103A at Frankfurt, and thenceforth was, yet again as unaccompanied luggage, loaded onto the fated flight at Heathrow. Thus eluding no fewer than three security regimes in three different airports in three different countries.      Many have arrogantly assumed that ‘well Luqa is just some minor hick airport’. Nevertheless, its security system came out top of the class when tested alongside Frankfurt and Heathrow by airport security expert Dennis Phipps. Added to this, of course, is the small question of what kind of state of the art triggering device did the bombers utilise to take into account all the potential delays that normally afflict air travel around Christmas-time to ensure that only the target, PA103, was devastated and not PA103A or KM180? The facts remain that no evidence exists for the assumption that any unaccompanied bag containing a bomb ever left the tarmac in either Malta (as Granada Television found out to their cost) or Frankfurt.
     Add to this that Mr Bedford, a baggage handler at Heathrow, reported that he had noticed an unaccounted for brown Samsonite suitcase on a pallet to be loaded onto 103, and not only that, but it was in a position, when ultimately on board, that corresponded to a location next to the skin of the aircraft a matter of only two or three inches away from where investigators calculated that the bomb detonated.
     How could a bomber placing the device on a flight from Luqa possibly have had such luck when it was assumed that the amount of Semtex used would likely not have produced the result it did had the bomb not been position thus? To compound this, not only did Mr Bedford make his concerns known before PA103A had touched down at Heathrow following its flight from Frankfurt but he also reported it to the authorities before a brown Samsonite had entered the frame of their investigation. His evidence was dismissed by the court.      Moreover, it is also a matter of historical record that there was a break-in to Heathrow airside a matter of hours before 103’s take off which gave access to the loading bay for the aircraft. This information, though reported to the authorities at the time, was not made available to the court, and only reached the public domain after the conviction had been passed down.
     In court, the best that the crown’s star witness could come up with, in return for the apparently $2,000,000 inducement for his testimony (plus $1,000,000 for his brother), was that Mr al-Megrahi ‘resembled’ the man who bought the clothes in his shop that the bomb was allegedly wrapped in. Eye-witness identification is a fraught business at the best of times and ‘resembled’ does not come anywhere close to ‘it was definitely the man in the dock’. In addition, Mr Gauci, the shopkeeper, stated that there were discrepancies regarding the age, height and build of the purchaser of the clothes when compared to Mr al-Megrahi, added to which, he also had difficulties over the date of purchase – an issue of crucial importance.
     Yet another Crown witness, Mr Ulrich Lumpert of MEBO, the company which allegedly manufactured this spectacularly sophisticated triggering device, walked into a Zürich notary’s office in 2007 and swore an affidavit retracting his Zeist testimony as effectively a pack of lies. Has this been followed up? Not a bit of it. This testimony surrounded a tiny fragment of PCB upon which no explosive residue was found. Whether it was actually tested is still open to question; nevertheless the fact remains that there is no evidence of residue. To cap it all, unaccounted-for modifications exist in the notes of the crown’s forensic witnesses from the Royal Armaments Research and Development Establishment (RARDE), Messrs Hayes and Ferady.
     This is but a mere snippet of the stunning Lockerbie/Zeist low lights. Ask yourselves this: if any relative or friend of yours had been convicted on evidence so flimsy, how would you feel? It’s all very well saying ‘surely such eminent judges could not have slipped up’; well, also consider, is our justice system blemish free? Would this be the first time in its history that a miscarriage of justice has taken place? This conviction has not been fully tested in the interests of justice in a court of law. That is a fact. The former lord advocate Elish Angiolini, no less, has admitted such when saying: ‘After referral of the case back to the Court of Appeal by the SCCRC, the appellant’s legal representatives argued two grounds for appeal (relating to the sufficiency of evidence and the reasonableness of the verdict) before the court in a public forum after which and before the court could issue its verdict, the appellant took the decision to abandon his appeal, thereby ending the criminal proceedings.’ In other words, two thirds of the appeal stands untested in a court of law.
     Lord Boyd of Duncansby too, another former lord advocate, says that he would have preferred the appeal to have run its course (now that it is safe to say so). Those who question this judgement could of course apply to reopen the appeal, and may yet do so. However, given that the Scottish government has elevated the judiciary to quasi-divine status, and rendered the Scottish Criminal Cases Review Commission (SCCRC) more or less impotent, in the affairs of the criminal justice system by giving the High Court of Justiciary power to reject applications to appeal its own judgements in the recent, and scandalous, Criminal Procedure (legal assistance, detentions and appeals) (Scotland) Act 2010, aka the ‘Cadder’ legislation, the likelihood is that the crown will reject such an approach, even if it means slapping bereaved families who support the justice campaign in the face. Something no doubt that Scotland’s newly appointed lord advocate, Frank Mulholland QC, will take in his stride given his desire to establish his credentials as a ‘hang em high’ law officer in his ‘no sell-by date on justice’” sound bite.
     The sell-by date he refers to is unfortunately restricted to cold cases not to miscarriages of justice. They, of course, do have a sell-by date, it seems. Nevertheless, they remain on the shelf, their putrefaction assaulting all who pass by. Along with having applications for appeal rejected by the Crown, corroboration too has gone out of the window and double jeopardy is back in town. Perhaps this is what you get when you appoint Crown Office insiders to the post of lord advocate. Is this what Scotland really wants? If it is, we face some very serious questions indeed.
     Talking of the SCCRC. Apart from the on-going dispute campaigners are involved in at the Scottish Parliament over the matter of opening an independent inquiry into the entire Lockerbie/Zeist saga as it falls under Scottish jurisdiction, one other very significant sticking point in particular is that the SCCRC’s statement of reasons dealing with the six grounds for Mr al-Megrahi’s second appeal has yet to be published.
     Shortly after the SNP came to power in 2007, a statutory instrument was slapped on the document, which permitted the suppliers of evidence to the SCCRC to block its publication. As the 2011 election approached, Mr Salmond promised that should the SNP be returned to power, primary legislation would be introduced to allow for the publication of the statement of reasons. Primary legislation? Why go through the laborious and highly time-consuming process of passing primary legislation when all that is required is to utilise the much quicker and equally effective process of using the secondary legislation route that was utilised to put the statutory instrument in place in the first instance?      Promises, promises. Time to pop down to the bookies, methinks, and put a tenner on the secondary route not being taken up and this grand and glorious primary legislation not being presented before parliament until the fag end of the SNP’s current term in office.
     So, what of the compassionate release then? Whatever differences the justice campaigners have with Mr Salmond and Mr MacAskill, it is quite clear that they have followed due process throughout and acted upon grounds based on the recommendations of the Parole Board, the prison governor and the medical report of the Scottish Prison Service’s most senior health professional. It stretches the bounds of credibility that Dr Fraser would be willing to put his calling as a doctor and his livelihood on the line by allowing himself to become drawn into the type of political conspiracy which could end up with his being struck off by the GMC as the lynch mob are suggesting. Similarly so with those of a conspiratorial bent who make entirely unsubstantiated claims that Alex Salmond has entered into some cabal with the SNP’s bête noire down in Westminster.
     The long and the short of it is that medical practice is called practice for a reason. As with the law, these professionals are doing precisely that: practising at getting it right. No doctors worth their salt are ever going to say that X, Y or Z will definitely happen, they will always couch a prognosis in terms of probabilities. The question which could perhaps legitimately be asked is what might be going right in terms of Mr al-Megrahi’s healthcare regime in Tripoli that may not have been in Greenock?
     HMG throughout has, at every opportunity, sat back and pointed the finger at Scotland when it comes to taking the flack on this. Quite apart from the fact that the detonation on 103, travelling at cruising speed some five miles high, could perfectly easily have occurred somewhere in a region over Longtown, Cumbria (therefore placing the deaths of many, if not all of those on the plane, in England), the UK had a duty of care over the aircraft whilst in its airspace. If there was any conspiracy surrounding the release however, those who believe so would be better employed investigating the conduct of former prime ministers Blair and Brown before they start accusing Scotland.
     Spare a thought though for the Libyans, now that the US and the UK have recognised the National Transitional Council (NTC) as the legitimate government of Libya. Following weeks of protesting that he had irrefutable proof that Colonel Gaddafi had put Mr al-Megrahi up to doing his Lockerbie dirty work, Abdel-Jalil, chairman of the NTC, finally revealed all on April Fools Day. Apparently, Gaddafi had footed Mr al-Megrahi’s legal bills whilst the prisoner languished at Her Majesty’s pleasure.
     Well, that’s it then, clear and incontrovertible evidence that Mr al-Megrahi bombed 103! If this is the standard of proof that satisfies Mr Abdel-Jalil, a former judge, one wonders how much the predicament of the long suffering Libyan people might improve under the west’s new found rebel friends. He also added that Mr Moussa Koussa would be in a position to support his contention. However, the delegation made up of representatives of the Scottish police and the Crown Office has been strangely coy about the interview they had in early April with the former Libyan foreign minister. Mr Koussa is now slumming it in Qatar having been waved off at the airport by HMG representatives.     
     In the last few days Dr Swire, a Justice for Megrahi committee member, has expressed concern that Mr al-Megrahi could find himself either being assassinated by the US or, should the Libyan rebels manage to get hold of him, they would hand him over to the Americans so that he might benefit from a whole new slant on healthcare. Lest it be forgotten, the US agreed to the arrangements for the Zeist trial. Despite this, though, successive American administrations claiming to represent the voice of the American people, which quite clearly they don’t, have shown no compunction when it comes to trampling over the sovereignty and sensibilities of others, have ‘renditioned’ their enemies for the purposes of torture to countries where such practices are par for the course, endorse a criminal justice system that seems to think that financial inducement in return for testimony is acceptable, take pride in a penal code whose barbarity is comparable to that of The Peoples Republic of China and various Middle Eastern states, and recognise no laws other than their own are clearly not going to bat an eyelid over the fact that Mr al-Megrahi is still a Scottish prisoner released under licence. It is a sorry world in which we live when the leaders of the most powerful 21st century, self-proclaimed Christian country have yet to mature beyond Urban II’s 1095 call to arms.
     The justice campaign lobbying the Scottish Parliament is not some random collection of fruitcake conspiracy theorists, despite the barricades set up by governments, the dizzyingly circular arguments presented by the crown and the vilification thrown at them by their pro-Zeist critics (‘whores of a terrorist syndicate’ being my own particular favourite). It comprises renowned figures from the worlds of the legal profession, politics, academia, the clergy, the police, journalism, and the arts etc as well as professionals who attended the crash site. But above all, it lists members of the bereaved and others who sat through every day of the trial. This is an issue which is crying out for an independent inquiry. It requires supreme courage on the part of the Scottish Government to show that we are not afraid to look ourselves in the mirror and admit that we are simply human and are capable of making mistakes no matter how hard we may try to avoid them.
     It is also important to recognise that whilst there may well have been an element of malice involved in the case and its outcome, the majority of the problems associated with it are more likely a result of blind fixation, laziness, idiocy and a desperate need to avoid the excruciating embarrassment of not producing a conviction in the most high-profile case ever to come before a Scots court, dealing, as it was, with such a tragic case of mass murder.
     Ultimately then, the question ought not to be should Mr al-Megrahi have been released, or why is he still alive, but why was he convicted in the first instance?

Robert Forrester is secretary and a founding committee member of the Justice for Megrahi campaign group