Full coverage of Lockerbie bombing trial appeal hearing

The Appeal - week 3
The Lockerbie Bombing Trial
Start: 05/02/2002 *** Updated: 10. 02. 2002
This page will keep you informed about the third week (05.02-08.02) in the appeal of the Lockerbie Bombing Trial in Camp Zeist.
Latest and updated news at bottom of page.

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Crown submission begins
05/02/2002 AP/BBC (!), Reuters et. al

Crown submission begins by the Lockerbie Trial Briefing Unit Glasgow University
Mr. William Taylor, QC, concluded his submissions on behalf of the appellant this morning.
The Crown case was opened by Mr. Alistair Campbell, QC, Advocate Depute. His submissions today centred entirely on the nature of an appeal in a case of this kind. He described the appellant as adopting a "misconceived approach" and urged the court to endorse a restricted appeal in conformity with what he argued were the normal rules in Scottish criminal appeals.
He emphasised that the appellant had brought this appeal solely on the ground of a miscarriage of justice through the trial court having misdirected itself and that the appellant had not invoked section 106(3)(b) of the 1995 Act, viz. that the trial court had returned "a verdict which no reasonable jury, properly directed, could have returned". Campbell argued that, even if section 106(3)(a) had been invoked, the issues of the credibility and reliability of witnesses, the weighing and balancing of the evidence and the drawing of inferences from the evidence were matters for the trial court alone. As these issues were not competent for a "reasonable jury" appeal, they were, he argued, a fortiori, incompetent in a "misdirection" appeal. Under questionning, he conceded that a true misdirection as part of drawing an inference might be a miscarriage of justice.
Campbell asserted that, while the trial court had been obliged to, and had, given reasons, the inadequacy of these reasons was insufficient to allow an appeal. He said that it was not permissible simply to assess the reasons alone, though the reasons could be used as part of the assessment as to whether there had been a miscarriage of justice.
He argued that the test of the unsafe and unsatisfactory verdict was not the test to be applied. It was, he said, no part of the law of Scotland, which required a higher standard: in Scotland, there were requirements of corroboration and the not proven verdict which pointed to a higher standard. The case law under the European Convention on Human Rights allowed latitude to States as to how they met the fair trial obligation of Article 6, provided that the overall result was compatible with the Convention.
Campbell claimed that any misdirection had to be assessed as a miscarriage of justice in the light of the misdirection itself, the evidence and the reasons. (end LTBU)

Crown defends guilty verdict
06/02/2002 AP/BBC (!), Reuters et. al
Lockerbie prosecutors vigorously defended last year's guilty verdict against a Libyan bomber at an appeal hearing Wednesday, rejecting defense claims that evidence was misinterpreted. ``The (original) trial court properly assessed all the evidence,'' prosecutor Alan Turnbull told judges hearing an appeal by Libyan secret agent Abdel Basset al-Megrahi. Turnbull told the appellate court that defense lawyers had failed to prove that anyone other than al-Megrahi carried out the attack. ``There is no record of what the appellant says may have happened,'' he said.
Turnbull, on the second day of prosecution rebuttals, said trial judges carefully weighed conflicting evidence in the complex case before concluding Megrahi was guilty.``The approach of the trial court was a reasoned one,'' Turnbull said. Prosecutors have cautioned a panel of five appeal judges sitting at a special Scottish court in the Netherlands -- set up to overcome Libyan objections to a trial in Britain -- not to overstep their remit. Appeal judges were reminded they were not allowed to substitute their views on how evidence was weighed or whether witnesses were credible, but only determine if there were serious enough errors to warrant a miscarriage of justice.
The appeal focuses on two areas: evidence from a Maltese shopowner who said he sold Megrahi clothes found wrapped around the suitcase bomb, and questions about where the bomb was originally loaded. Key to the case was the trial judges' acceptance that the suitcase bomb was loaded in Malta, from where it was flown via Frankfurt to Heathrow and then placed aboard Pan Am flight 103 on Dec. 21, 1988.
Turnbull spent most of Wednesday defending evidence from Frankfurt airport's computerized baggage handling system showing the bomb bag was transferred from an Air Malta flight to a Pan Am feeder flight to London. Megrahi's lawyers say trial judges ignored or misinterpreted evidence undermining the accuracy of the luggage records. An apparently unaccompanied piece of luggage listed in the computer records as being transferred to the Pan Am feeder flight might have originated on a flight from Damascus instead of Malta, the lawyers suggest.
Crown Response Continues by the Lockerbie Trial Briefing Unit Glasgow University
Alistair Campbell, QC, completed his remarks on behalf of the Crown this morning. Under questionning, he conceded that, if the trial court had completely failed to take account of relevant evidence, that would amount to misdirection. However, he stressed that, save in the most exceptional circumstance, the weighing of evidence and the adoption of one inference where two competing inferences were possible were matters for the trial court.
Pressed on what was the minimum required of the trial court in the provision of reasons, he said that, while it was difficult to define this minimum, the reasons given by the trial court were more than adequate. He said that the trial court was anxious to keep the opinion within reasonable bounds and so the opinion dealt with only matters of material significance. He asserted that the trial court had no need to provide detailed reasons. What was needed - and amply provided - was an explanation, a "tool", to enable an appeal court to explore what had been done.
He commended the trial court's approach as being correct: explicitly, it had considered the whole evidence, accepted that there were uncertainties and qualifications and considered the submissions of counsel before determining a verdict.
Mr. Alan Turnbull, QC, then began his examination of some the appellant's grounds of appeal. He focussing on criticisms of the trial court's finding that the suitcase with the improvised explosive device had been transferred from Air Malta flight KM 180 to Pan Am 103A at Frankfurt. He said that witness Schreiner must have indicated to the court, through intonation or gesture, that the relevant bags had completed coding by 1310 on 21 December 1988. Alternatively, that particular time could be inferred from other evidence. If the time coding finished was, as the appellant claims, 1316 (when a possibility existed of the Air Malta baggage being mixed with baggage from other flights), this might be a misdirection. In this case, the question arose as to whether the misdirection was material; and, in his opinion, it was not.
In relation to the baggage system at Frankfurt, whose record keeping was doubted by the appellant, Turnbull said that the appellant had accepted the system by himself founding on it in his submissions. He described the contention that there was missing baggage from flight LH 669 from Damascas as speculative. He said that some of the appellant's grounds of appeal went to the weight of evidence and, as such, were not competent grounds of appeal. Under questionning, he said that, nonetheless, he would address these grounds to help the appeal court. (end LTBU)

Judge Lord Osborne awakes
07/02/2002 AP/BBC (!), Reuters et. al
Lockerbie appeal judges have grilled the prosecution today over how the suitcase bomb that killed 270 people managed to evade elaborate security procedures at Malta's Luqa airport. The question of whether the rigged suitcase was loaded in Malta was a key element in the trial. During the hearing at the Scottish court in the Netherlands, Lord Osborne, citing defence arguments, stated that Maltese baggage records countered a key prosecution argument that an unaccompanied Samsonite suitcase was loaded on to an aircraft that connected with the doomed New York-bound aircraft in London.
He said: "There is considerable and quite convincing evidence that could not have happened. It is quite difficult, rationally, to follow how the court took the steps it did in saying we don't know how it got on to the flight, but it must have been there." Alan Turnbull QC, for the Crown, admitted the Maltese connection was crucial to the prosecution's case, but insisted there was enough circumstantial evidence to prove it.
The original panel of three judges acknowledged there was no explanation of how the rigged suitcase got through very tight security at Malta's Luqa airport onto Air Malta flight KM 180. "The absence of any explanation of the method by which the primary suitcase might have been placed on board KM 180 is a major difficulty for the Crown (prosecution) case," the written verdict read.
Appeal judges expressed scepticism as to how the trial court then jumped to its final conclusion that Megrahi was responsible for loading the suitcase in Malta. "It's quite difficult to follow rationally," Judge Lord Osborne said. Someone who wanted to plant a bomb on Pan Am 103 would be taking a great risk if they decided to plant it in Malta rather than Heathrow, the judge added. Security procedures at Luqa involved a triple check of passenger numbers and careful matching of passengers with their baggage.
Lord Osborne also asked why a terrorist would send the bomb on such a long journey, with transfers in Frankfurt and London, with the risk the bomb could go off at the wrong time or in the wrong place. "He would be taking a lot of chances of failure by having the bomb ingested in Malta and not in Heathrow," the judge said. "All sorts of things could have gone wrong with the sequence of flights."
Prosecutor Alan Turnbull said a mass of other evidence, including proof that clothing purchased in Malta was wrapped around the bomb, convinced judges that Megrahi was guilty. The trial judges carefully weighed conflicting evidence before coming to their conclusion, he said on the third day of prosecution rebuttals. However, Mr Taylor said that documentation from Frankfurt appeared to suggest the carriage of an unaccompanied bag.
"All that is left is the reconcile two apparently contradictory portions of evidence," he said. "This is a criminal act, not an act of negligence. Procedures exist at airports to prevent this event occurring. "This event did occur, procedures were subverted, the only question is where those procedures were subverted." Lord Osborne then asked if a terrorist was more likely to draw up a plan which minimised the risk of flights being delayed or the bag getting lost in the system.
Mr Turnbull said: "It is in the nature of an act of terrorism that it implies the ability and desire to take risks, both of detection and of failure." He also dismissed defence claims about Heathrow being a more likely point of infiltration as "entirely subjective comment."
Prosecutors have told a panel of five appeal judges sitting at a special Scottish court in the Netherlands -- set up to overcome Libyan objections to a trial in Britain -- not to overstep their remit. Turnbull again reminded the judges they were not allowed to substitute their views on how evidence was weighed or whether witnesses were credible, but could only determine if there were serious enough errors to produce a miscarriage of justice. The appeal focuses on two areas: evidence from a Maltese shopowner who said he sold Megrahi clothes found wrapped around the suitcase bomb, and questions about where the bomb was originally loaded.
Lead Crown advocate Alistair Campbell QC said the trial court had been right to rely on Mr Gauci's evidence that he recognised al-Megrahi as the man who bought clothes in his shop on 7 December 1988.
Lord Kirkwood awakes, too
The date was crucial to the prosecution's case that the bomb started its deadly journey in Malta, as there was evidence that al-Megrahi was staying on the island at the time. One of the judges, Lord Kirkwood, closely questioned Mr Campbell about Mr Gauci's evidence.
Lord Kirkwood asked how the court could have regarded Mr Gauci's identification of al-Megrahi as a fact when he was only described as being similar. Mr Campbell said that "strictly speaking", the court could not treat Mr Gauci's testimony as a "primary fact". He said, however, that they could draw an inference of fact if they were satisfied he was a reliable witness. The judge asked: "Without any corroboration?"
Mr Campbell: "This is not evidence of commission of a crime which requires corroboration.
"This is a piece of circumstantial evidence in a circumstantial case."
Lord Kirkwood: "The point that concerns me is how could they infer as a fact that he was the purchaser by resemblance only?"
Mr Campbell: "In my submission, it turns upon what is meant by identification by resemblance only.
"He said 'that is the man, he is very like him'. The other evidence comes from his (Megrahi's) movements at the relevant times at Luqa (Malta's main airport)."
Lord Kirkwood: "That is not what the trial court is saying.
"They are saying from Mr Gauci's evidence, we can infer as a fact that he was the purchaser. Are they entitled to do that?"
Mr Campbell replied: "I say that they are."
The hearing was adjourned until Monday morning.

Thursday February 7, 2002 by the Lockerbie Trial Briefing Unit Glasgow University
Alan Turnbull, QC, continued his submissions on behalf of the Crown, addressing many of the appellant's grounds of appeal relating to the progress of the bag containing the improvised explosive device, referred to as the "primary suitcase" at Luqa, Frankfurt and Heathrow airports. He asked the court to read paragraph 82 of the trial court's opinion as a whole. It contained a great deal and should, he said, be read along with other paragraphs in the opinion as the conclusions and inferences in it dependede on adminicles of evidence discussed in other paragraphs.
He suggested that two inferences were to be tested: that an unaccompanied bag travelled on KM 180 from Luqa to Frankfurt and that this bag contained the IED. He was questioned about the trial court's statement that there was documentary evidence that an unaccompanied bag did travel from Malta to Frankfurt. Turnbull replied that the trial court's conclusion could be extrapolated from other findings and inferences. He presented an outline of the trial court's findings and inferences: the clothing found at the crash scene was purchased in Malta; a Libyan had purchased this clothing; the Libyan security service had a presence at Luqa airport; the MST 13 timer for the IED was of a type supplied to Libya; an unaccompanied bag was transferred at Frankfurt to Pan Am 103A; and the appellant was a member of the JSO, the Libyan security service, and was in Malta at the relevant time under a coded (false) passport. On the other hand, the PFLP-GC, mentioned in the special defence, did not use MST 13 timers. Turnbull claimed that, from these findings and inferences, it was reasonable for the trial court to conclude that the primary suitcase had passed though Luqa airport.
Lord Osborne asked whether this inference was justified in the light of the fact that there was evidence of tight security at Luqa and no direct evidence of the ingestion of the primary suitcase at that airport. In particular, he said that there was no documentary evidence of any unaccompanied bag on KM 180. Turnbull replied that the inference was drawn from other facts and circumstances, in much the way he had outlined. He said that, in a circumstantial case, particular pieces of evidence cannot be compartmentalised. He said that the trial court, confronted with what appeared to be conflicting information, did what any trial court would do and made a choice. The determination that the primary suitcase was on KM 180 was bolstered, Turnbull argued, by evidence that it was always possible to subvert airport security systems and that all airports aim for total security and very few attain it. When asked whether ingestion of the primary suitcase at Luqa was an essential part of the Crown case, he replied that it was.
Asked whether it was foolhardy for any terrorist to introduce a suitcase with an IED at Luqa rather than Frankfurt or Heathrow, he replied that terrorists in their nature take risks of detection or failure. Turnbull refused to speculate as to the motives of terrorists. He contended that there was evidence of limitations in the x-ray equipment and the training of personnel at Frankfurt such that the evidence that no bag passing through x-ray for Pan Am 103A was shown to contain any suspicious device could legitimately be discounted. Explosives were difficult to detect, the equipmet had admitted failings and the staff were inexperienced and little trained.
Turnbull said that he would address the court on the issue of new evidence tomorrow when the appeal continues. (LTBU end)

Break-in witness allowed to testify
08/02/2002 AP/BBC (!), Reuters et. al

Judges have ruled that key new evidence could be heard in the appeal of a Libyan convicted of the 1988 Lockerbie airliner bombing. Appellate judges said on Friday that lawyers for Abdel Basset al-Megrahi would be permitted to call two new witnesses to testify on a break-in at London's Heathrow airport on the day a Pan Am jumbo jet blew up over Lockerbie in Scotland, killing 270 people.
Court officials at the specially created Scottish court at Camp Zeist, a disused U.S. airbase in the central Netherlands picked to allay Libyan objections to a trial in Britain, said judges had decided to allow former Heathrow security workers to give evidence. According to the grounds of appeal submitted by Megrahi's lawyers, the new evidence shows that hours before Pan Am 103 took off from Heathrow, a padlock was forced on a secure door near a baggage build-up area.
``In the particular circumstance of this case and in the light of the submissions by counsel, we have decided that additional evidence should be heard'' from Manley and his superior, Philip Radley, said presiding judge Lord Cullen. Manly and Radley are expected to be called next Wednesday, a court official said.
"Had (that) evidence been available at the trial, it would have supported the body of evidence suggestive of the bomb having been infiltrated at Heathrow on which the defence founded," the written appeal grounds read. The original panel of three judges acknowledged there was no explanation of how the rigged suitcase made it past tight security at Malta's Luqa airport on to an Air Malta flight to Frankfurt. The appeal focuses on two areas crucial to Megrahi's conviction: where the bomb was originally loaded and evidence from a Maltese shopowner who said he sold Megrahi clothes found wrapped around the suitcase bomb.

New Evidence Allowed by the Lockerbie Trial Briefing Unit Glasgow University
The appeal court ruled today that it would allow the appellant to introduce two new witnesses, Raymond Manly and Philip Radley. The appellant had argued that neither of these witnesses could have been called at the original trial as there existence and their evidence had not been communicated by the police to the prosecution or the defence. He also contended that their evidence, concerning a break-in at the Pan Am baggage area at Heathrow airport about 17 hours before Pan Am 103 departed, also satisfied the other test required under section 106(3) of the 1995 Act, viz. that the evidence would have had a material impact on the verdict. Alan Turnbull, QC, on behalf of the Crown, had earlier argued that the evidence of these two witnesses was not material. He said that, to be admitted, this new evidence must have a significant impact on some critical issue.
Lord Cullen announced that witnesses Manly and Radley would be heard by the court. In relation to the Crown's request to call an additional 11 witnesses to rebut this evidence, he invited Alistair Campbell and Bill Taylor, representing the Crown and appellant, to consider the matter.
Turnbull concluded by dealing with the remainder of the grounds of appeal assigned to him. He said that the trial court made no error in law when it regarded the appellant's association with Edwin Bollier and with military procurement as being supportive of guilt. As to the visit by the appellant to Malta on 20/21 December 1988 using a coded passport, Turnbull pointed out that this passport had been used on five occasions prior to the Malta visit and never thereafter. The use of a coded passport for this visit was not explained.
Alistair Campbell, QC, then took up the grounds of appeal in A1 and A2. He said that the appellant's attack on Tony Gauci's identification evidence went to the weight of evidence and therefore was not a misdirection properly understood. If anything, it might be subject to appeal under the "unreasonable jury" test but, even here, it was at the "frontier" of what was competent. The assessment of identification evidence was for the trial court alone even when serious criticisms are made of that evidence. He outlined Gauci's consistent identification evidence from the photospread in 1991, the ID parade in 1999 and in court. The trial court was impressed by Gauci's "demeanour and his approach" and had had regard to the qualifications in his identification.. Lord Kirkwood asked about the discrepancies with earlier statements by Gauci regarding the age and height of the purchaser of the clothing. Campbell replied that the trial court rightly looked at the totality of the identification evidence and recognised the difficulties in this area.
As to the date of the purchase of the clothing, Campbell denied that the trial court had misunderstood the joint minute about the days football was being broadcast. The trial court was aware of all the facts and submissions when it opted for 7 December. It had combined all the available evidence in reaching this determination.
Campbell submitted that the trial court made no error in considering that the weather leant support to 7 December as the relevant date for the purchase of the clothing. In any event, he said, weather issues went to the weight of evidence and therefore could not be a misdirection.
The Crown submissions will continue, and end, on Monday, 11 February, leaving only the hearing of the additional evidence permitted today. (end LTBU)