Here is Prof Black's latest
published article. I think it is decidedly tactful and restrained, considering
all that went on at
Iain McKie is of course the man
responsible for uncovering the iniqitous behaviour of the Crown Office in the
appalling McKie fingerprint case.
The final piece by Stephen
Raeburn was published in a specialised magazine for lawyers called 'The
FIRM' in its August edition. It is a powerful presentation of a
fundamentally different explanation for Lockerbie, namely the explosion of
military ordnance illegally loaded onto PA103. There are a number of people who
need to be cross examined under oath concerning this theory, and since many of
them are domiciled in either
It should be clear that this
theory could only be true if the Air Accident Investigation Branch was
deliberately concealing the truth and lying in its report 2/90 of 1990.
Steven Raeburn is a Scottish
journalist searching for the truth.
Jim S.
The fairy story of the
Crown's independence
ROBERT BLACK
AT THE end of June, the Scottish Criminal Cases Review
Commission (SCCRC) referred Abdelbaset Ali Mohmed al-Megrahi's conviction of
the Lockerbie bombing back to the High Court of Justiciary for a further
appeal. The case had been under consideration by the SCCRC since September 2003
and its statement of reasons (available only to Megrahi, the Crown and the High
Court) extends to more than 800 pages, accompanied by 13 volumes of appendices.
The commission, in the published summary of its findings, rejected submissions
on behalf of Megrahi to the effect that evidence led at the trial had been
fabricated and that he had been inadequately represented by his then legal
team, but went on to indicate there were six grounds on which it had concluded
a miscarriage of justice might have occurred. Strangely, only four of these
grounds are enumerated in the summary. They are:
• That there was no reasonable basis for the trial court's
conclusion that the date of purchase of the clothes which surrounded the bomb
was 7 December 1988, the only date on which Megrahi was proved to have been on
Malta and so could have purchased them. The finding that he was the purchaser
was "important to the verdict against him".
• That evidence not heard at the trial about the date on
which Christmas lights were switched on in
• That evidence was not made available to the defence that
four days before the shopkeeper made a tentative identification of Megrahi at
an ID parade he had seen a magazine article containing a photograph of Megrahi,
linking him to the bombing.
• That other evidence which undermined the shopkeeper's
identification of Megrahi and the finding as to the date of purchase was not
made available to the defence.
The reasons given by the commission for finding that a
miscarriage of justice may have occurred in this case are not limited to the
effect of new evidence which has become available since the date of the
original trial and the non-disclosure by the police and prosecution of evidence
helpful to the defence. The prima facie miscarriage of justice identified by
the commission includes the trial court's finding in fact on the evidence heard
at the trial that the clothes which surrounded the bomb were purchased in
I have always contended that no reasonable tribunal could
have convicted Megrahi on the evidence led. Here is one example of the trial
court's idiosyncratic approach to the evidence. Many more could be provided.
A vitally important issue was the date on which the goods
that surrounded the bomb were purchased in
On evidence as weak as this, how was it possible for the
trial court to find him guilty? And how was it possible for the appeal court to
fail to overturn the conviction? The Criminal Appeal Court dismissed Megrahi's
appeal on the most technical of technical legal grounds: it did not consider
the justifiability of the trial court's factual findings at all (though it is
clear from their interventions during the Crown submissions in the appeal that
at least some of the judges were only too well aware of how shaky certain
crucial findings were and how contrary to the weight of the evidence).
I contend that at least part of the answer lies in the
history of the Scottish legal and judicial system. For centuries courts have
accorded a specially privileged status to the Lord Advocate. It has been
unquestioningly accepted that, though a political appointee and the
government's (now the Executive's) chief legal adviser, he (now she) would at
all times, in his capacity as head of the prosecution system, act
independently, without concern for political considerations, and would always
place the public interest in a fair trial above the narrow interest of the
prosecution in gaining a conviction. This vision of the role of the Lord
Advocate was reinforced by the fact that, until the Scottish Judicial
Appointments Board commenced operations in 2002, all Scottish High Court Judges
(and sheriffs) were nominated for appointment to the Bench by the Lord Advocate
of the day. This meant that, in all criminal proceedings, the presiding judge
owed his position to the person (or one of his predecessors in office) who was
ultimately responsible for bringing the case before him, and for its conduct
while in his court.
The behaviour of the Crown in the Lockerbie trial was
certainly not beyond criticism - and indeed it casts grave doubt on the extent
to which the Lord Advocate and Crown Office staff can be relied on always to
place the interest of securing a fair trial for the accused above any perceived
institutional imperative to obtain a conviction. To illustrate this in the
context of the Lockerbie trial, it is enough to refer to the saga of CIA cables
relating to the star Crown witness, Abdul Majid Giaka, who had been a
long-standing CIA asset in
Yet the Crown strove valiantly to prevent the defence
obtaining access to these cables. At the trial, on 22 August 2000, when he was
seeking to persuade the Court to deny the defence access to those cables in
their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC, stated
that the members of the prosecution team who were given access to the
uncensored CIA cables on 1 June 2000 were fully aware of the obligation
incumbent upon them as prosecutors to make available to the defence material
relevant to the defence of the accused and, to that end, approached the
contents of those cables with certain considerations in mind.
Boyd said: "First of all, they considered whether or
not there was any information behind the redactions which would undermine the
Crown case in any way. Second, they considered whether there was anything which
would appear to reflect on the credibility of Majid... On all of these matters,
the learned Advocate Depute reached the conclusion that there was nothing
within the cables which bore on the defence case, either by undermining the
Crown case or by advancing a positive case which was being made or may be made,
having regard to the special defence... I emphasise that the redactions have
been made on the basis of what is in the interests of the security of a
friendly power... Crown counsel was satisfied that there was nothing within the
documents which bore upon the defence case in any way."
One judge, Lord Coulsfield, then intervened: "Does
that include, Lord Advocate... that Crown counsel, having considered the
documents, can say to the Court that there is nothing concealed which could
possibly bear on the credibility of this witness?"
The Lord Advocate replied: "Well, I'm just checking
with the counsel who made that... there is nothing within these documents which
relates to Lockerbie or the bombing of Pan Am 103 which could in any way
impinge on the credibility of Majid on these matters."
Notwithstanding the opposition of the Lord Advocate, the
court ordered the unedited cables to be made available to the defence, who went
on to use their contents to such devastating effect in questioning Giaka that
the court held that his evidence had to be disregarded in its entirety. Yet,
strangely enough, the judges did not see fit publicly to censure the Crown for
its inaccurate assurances that the cables contained nothing that could assist
the defence.
Beyond the Lockerbie trial, the failure of the Crown to
place the public interest in a fair trial above the interest of the prosecution
in obtaining convictions is illustrated by the extent to which the Lord
Advocate has recently had to be dragged through the Privy Council in London
before making available to the defence material in the prosecution's possession
that no-one could conceivably deny was of relevance and assistance in the
accused person's defence. So much for the fairness of the trial being the
Crown's primary and predominant motivation!
It is surely time for all involved in the Scottish criminal
justice system to put away childish things. We are all of us, judges included,
surely too old to believe any longer in fairytales. Fairytales can be
convenient and comforting and can bolster our self esteem. But, as in the case
of the belief that the Crown can uniformly be relied upon always to act
selflessly in the public interest, they can be dangerous and, if acted upon,
work terrible injustice.
It is submitted that the Lockerbie case demonstrates just
how necessary it is, if public confidence is to be maintained, for the Scottish
Executive to institute a high-powered independent investigation into all three
aspects - investigation, prosecution and adjudication - of the Scottish
criminal justice system, as has already been called for by, among others, Dr
Jim Swire, Tam Dalyell and Professor Hans Koechler, the UN observer at the
Lockerbie trial.
• Robert Black, QC, FRSE, is Professor Emeritus of Scots
Law at the University of Edinburgh.
####################################################
Legal smokescreen
Professor Robert Black's article, "The fairy story of
the Crown's independence" (Law & Legal Affairs, 23 July) should be
required reading for every member of our Scottish Executive.
As the Lockerbie, Shirley McKie and other well-documented
cases dramatically reveal, the Lord Advocate has for years used the myths of
Crown independence and the "public interest" to justify cover-up and
excuse the Crown's more dodgy and disreputable decisions.
If the positive start heralded by the SNP Executive's
decision to order a judicial enquiry into the Scottish Criminal Record Office
fingerprint scandal is to be maintained and public confidence restored, it must
answer Prof Black's call for a "high-powered independent investigation
into all three aspects - investigation, prosecution and adjudication - of the
Scottish criminal justice system".
Iain McKie
#############################
An alternative
theory 'Attack or Trick?' NATURE August 2007
On the 28 June, Robbie the Pict, who spearheaded the
campaign leading to the reversal of the tolling regime on the Skye Bridge, sent
a letter to new First Minister Alex Salmond, which he copied to Justice
Minister Kenny MacAskill, Lord Advocate Elish Angiolini, and Solicitor General
Frank Mulholland. It contained an extract, reproduced below, from the Zeist
transcript of the trial of Abdelbaset Ali Mohmed Al Megrahi, whose conviction
for the Lockerbie atrocity has been referred back to the High Court for review,
on the basis that miscarriage of justice may have occurred.
Robbie has looked at the trial transcript and proceedings,
and followed the case closely together with his neighbour and fellow campaigner
Dr Jim Swire, representing UK Families 103. Swire believes Megrahi to be
innocent, and Robbie has concluded there is sufficient evidence to warrant a
fresh investigation, focusing not on a terrorist bombing, but on an accident on
board the ill-fated airliner. This thesis, if correct, has far reaching
implications for the actions of the US, UK and Scottish Governments, and
officials within the Crown Office. It requires the open minded reader to step
through the looking glass, into the potentially murky world of Government
intelligence, covert operations and geo-politics, and consider the events of 21
December 1988 from an entirely fresh, disturbing perspective.
Robbie's letter begins by looking at a portion of the trial
transcript.
LOCKERBIE TRIAL - KAMP ZEIST
Extract from evidence given by DC Alexander McLean, working
in Sector B.
P 339
McLean - We encountered one or two difficulties, sir. And
one of the major ones was that on the aircraft there was a million sewing-machine
needles being conveyed, and they landed with the fuselage in the sector -- B
Sector. And unknown to us at the time, one or two officers got pricked with the
needles. And so eventually we had to spread a very large tarpaulin right along
the site and move forward sort of by inch by inch.
Q - The sewing-machine needles were being carried as cargo
on the aircraft?
McLean- That's correct, sir.
Q-I understand. And they were distributed around the site
as a consequence?
McLean - Yes. They caused a bit of a hazard, and that was
the reason that the recovery of the bodies just took a wee bit longer than it
would have done if we hadn't encountered such a hazard.
The above
evidence seems to have been missed by all concerned but is worthy of further
examination. A million sewing machine needles weighs up to ¾ ton. Who would pay
air freight charges to fly needles to America, when sea-freight is so obviously
cheaper? Who was the sender? Who was the end-user? Where is the bill of lading,
invoice and the delivery note? Is there an insurance claim by the sender?
Why did
the Police put a ‘needles warning’ in the Daily Record on 27 December 1988,
claiming that these were potentially contaminated hypodermics which should not
be picked up? Who sends ¾ ton of contaminated hypodermics to New York by air
just prior to Christmas?
Alternatively,
it is remarkable how similar an electric sewing machine needle is to a
flechette. This weapon of terror, is also less than 2" long, has a
flattened portion in the centre instead of a thread hole and has small flights
to ensure stability. Known as a ‘terrain–denial weapon of terror’, it is
dispersed in packs of thousands in an omni-directional scything motion.
Witnesses have described victims as both ‘flayed alive’ and ‘cut to burger-size
pieces’. Royal Ordnance, at that time state-owned, were specialist packers of
such warheads. There is apparently an art in lacing the layers of needles with
the explosive to achieve the correct effect. The missile known as the Lockheed
Hydra 70 is equipped to use such warheads.
However,
in the development period from the early eighties up until at least 1992 such
missiles were having serious problems with ‘Rad-Haz’; their electrical
components, although very sophisticated, were also very sensitive to extraneous
electrical influence, commonly called ‘radiation hazard’. In layman’s terms it
was equivalent to a neighbour’s garage door remote switching off your
television every time he used it, an unwanted electrical side-effect.
It is
perhaps highly significant that the Maid of the Seas exploded during exchanges
with Prestwick, when her navigator would be involved in relatively lengthy
broadcasts confirming the flight path to be used across the North towards JFK
Airport. No attention at all appears to have been given to this most obvious
starting point in any investigation. Instead, we have a rush to judgment in
favour of a fantastic conspiracy theory with huge flaws in the technical
evidence.
Looked at
rationally, the actual evidence instead suggests an accident. The accident is
terrible in its cause, its nature, its consequences and its implications but it
is nonetheless an accident. It is of course illegal to carry munitions of war
in a civil aircraft, especially if secretly. There would be serious questions
concerning liability and culpability.
The testimony of one eyewitness at the crash site
strengthens Robbie’s claim that Pan Am 103 may not have been brought down by a
bomb at all, but by accidental misfiring of mainstream weaponry components,
carried illicitly on the plane.
John Parkes is a former soldier, MOD contractor and
consultant & designer of bomb blast mitigation techniques. He travelled to
the scene that night from Edinburgh, and returned to assist in the rescue and
clear up operations that followed. He has nearly 40 years of explosives
engineering experience.
Parkes was asked to examine the bodies of three victims in
the improvised mortuary at Lockerbie Ice Rink prior to post mortem. The first
victim Parkes examined was a child perhaps nine years of age. The rear of her
body showed fragmentation strikes, pieces of metal penetrating her skin. Their
distribution, the blast shadowing caused by her seat, and in particular, minute
holing in her socks which revealed a chemical propellant, all confirmed a
specific blast signature. It revealed the type of explosive, and where it was
situated in relation to the girl. The holing and fragmentation in particular
are not characteristic of semtex or similar explosives, he says, and rule out a
semtex blast as the cause of the wounding.
Nor did he believe the wounds have been caused by the
disintegration of the plane on its descent. The fragments were propelled at
high velocity; explosively driven.
Pathologist Anthony Busutil, who examined the same body
concluded that what Parkes witnessed was caused by ‘scraping’ as the body
impacted the gravel of Dumfriesshire after her 5 mile freefall.
Flight 103 was a modified Boeing 747 built in 1970 but
refitted in 1987 to become part of the Civil Reserve Air Fleet, which according
to the Air Accident Investigation Board (AAIB), "enabled the aircraft to
be quickly converted for carriage of military freight containers on the main
deck during times of national emergency". This requires reinforcement of
the floor and structure, and the planes are then used to ferry troops,
munitions and military equipment. Such modified CRAF planes were used for the
mass deployment of troops in the run up to the Gulf War. The possibility that a
CRAF modified US Jumbo such as PA103 was ferrying pallets of weapons -in 1988
during the Iran-Contra era- is supported by un-broadcast news footage of the
iconic nosecone section of the plane, which shows that the structure appears to
have been peppered by high impact shrapnel strikes, penetrating the crossbeam
struts.
Sophisticated military weaponry relies upon electronic
triggering and jamming to function as designed. Many surface to air missiles
are sensitive to long VHF frequency transmissions, which can cause weaponry to
function and detonate.
If the US was ferrying weaponry on a civilian aircraft,
resulting in 270 deaths on UK soil, it becomes apparent why the two governments
would try to conceal this information.
The AAIB report, the official investigation onto the cause
of the crash, is imprecise about the most crucial time index of the entire
flight, the moment when the explosion on board took place.
As Pan Am 103 crossed into the Shannon/Prestwick air
traffic control zone, it was required to switch to VHF2 transmission, for which
there is a specific procedure. The report is inconsistent about who is talking
to whom, contradictory about when communication started, vague about whether
communication was one or two way between the plane and control, and
contradictory about fundamental timing and transmission details.
Despite the obfuscation, it is clear that the explosives
event on the plane took place during the time index when Pan Am 103 was in
contact with Shanwick, having switched to using VHF2. It is unclear from the
report whether or not the crew had made the long return call to Shanwick; the
transmission from the aircraft itself that could have triggered any
electronically sensitive munitions that were being carried.
Parkes made extensive efforts to pass his findings to the
Crown Office, to MSPs, MPs, the defence teams and to news agencies. MP Phil
Gallie raised the matter with Lord Advocate Colin Boyd. The Scotsman reported
Parkes claims in August 2006, and they also received coverage from the Herald
following Megrahi’s conviction, but before the appeal.
The Lord Advocate’s response to Phil Gallie pointed out
that the defence team did not lead evidence during the trial to contradict the
findings of the AAIB report. What he did not do was explain why his department
didn’t act upon Parkes’ findings once they had been passed to it. That was in
March 2001.
Jim Swire repeated his call for an independent inquiry on
28th June, the day the SCCRC referred the case back to the High Court. An
inquiry that Labour promised in opposition, and which has, after over ten years
in office in Westminster, not materialised. Given the possibility of taint
within the Scottish judiciary, the UK and US Governments, the Crown Office, and
at senior political level if the Parkes scenario is borne out, one can only
hope such an inquiry can be convened at all.
The conclusions of the UN appointed special observer to the
trial were not widely reported after the conviction, but they are resonant in
light of both the hypothesis that Pan Am 103 was the victim of a mid-air
accident, and the SCCRC’s decision to refer the case back to the High Court for
a second appeal.
Dr Hans Kochler published his findings at the conclusion of
the trial, saying that the presence of US and Libyan government representatives
"gave the trial a highly political aura that should have been avoided by
all means." To him it appeared that an "incomprehensible"
verdict of convenience had been reached, to yield a politically motivated
solution. "The air of international power politics is present in the whole
verdict. There is not one single piece of material evidence linking the two
accused to the crime," Kochler concluded.
The presence of US Department of Justice representatives
sitting with the prosecution, and Libyan government representatives sitting
with the defence, "leads to the suspicion that political considerations
may have been overriding a strictly judicial evaluation of the case". He
described witnessing openly exercised influence from the part of "actors
outside the judicial framework", concluding that "the trial, seen in
its entirety, was not fair, and was not conducted in an objective manner."
On 14 October 2005, Kochler called for a full public
inquiry. The falsification of evidence he witnessed, selective presentation,
manipulation and interference were "criminal offences in any country, and
the possible criminal responsibility of people involved in the Lockerbie trial
should be carefully studied by prosecution authorities." Nothing less than
a crime, he says, took place in Camp Zeist.
Before the Scottish, UK or US governments start looking for
another group of suspects, the crucial question to be asked is why was the case
allowed to be brought in the first place when the supporting evidence was so manifestly
inadequate?
It is clear that the Scottish Crown Office proceeded with
the indictment of Megrahi and Fhimah on the basis of assurances from the CIA,
given well in advance of the trial, that they possessed a star witness, Abdul
Majid Giaka, who claimed to be able to positively identify them both and link
them to the atrocity. Scottish authorities believed the witness would be
credible. He was not. Almost his entire testimony was dismissed, and it was
discovered that his cooperation had been conditional upon receiving payment
from the US authorities, who knew from the outset he was a fantasist. This
information was only given to the prosecution very late during the trial.
Perhaps in hindsight, the trial should have been halted at
that stage. But after Scotland’s largest ever criminal investigation, the
lengthy diplomatic debate over the release of the suspects, a 19 month trial
under international scrutiny, the pressure to conclude and convict was on.
Jim Swire received a remarkable insight whilst at a meeting
with UK Families 103 at the US embassy in London. “One of our number was told
by an official on the US Commission of Inquiry, in an aside that "your
government and mine know exactly what happened, but they're never going to
tell". This admission to the families group reinforces the doubts raised
by the UN observer, that the trial was politically, not judicially motivated.
And if the flight was downed by the accidental detonation of munitions, the
motives of the UK, the US and latterly Libyan governments become clearer, in
the light of Kochler’s analysis.
Dr Kochler observed Libyan Governmental collusion in the
trial, and half hearted, if not feeble, efforts by the defence team, who
firstly dropped their special defence which incriminated the Iranian/Syrian
terror group the PFLP, then compounded this by only calling three of their
potentially hundreds of listed defence witnesses, including the accused
themselves, who offered no testimony. "It puts into question the
credibility of the defence’s actions and motives," he said.
While clearing the way for Megrahi to appeal, the SCCRC
reiterate not only selected grounds for his conviction, but they also go to
some lengths to ensure that central planks of the prosecution case that had
become subject to considerable doubt, are reinforced. The SCCRC specifically
stress their faith in the testimony of discredited forensic witness Allan
Feraday. The verdicts have been overturned in 3 separate cases in which he gave
evidence, yet the SCCRC state they are satisfied that the evidence he supplied
in the Lockerbie trial, was "different in nature" from evidence he
gave in cases that were later overturned. The English courts no longer consider
him credible, but the SCCRC affirm that the Scottish High Court should.
The acquittal of co-accused Fhimah, and the conviction of
Megrahi on the same indictment that contended they had to have acted in
concert, rendered the verdict incomprehensible to Kochler and Robert Black,
among other legal observers. Tam Dalyell once said that one has to almost be a
‘Professor of Lockerbie Studies’ to comprehend the detail of this complex
story, which has arguably become impenetrable to the public at large. Kochler
and Swire’s repeated calls for a public inquiry have yet to be answered, but
such an inquiry may allow the circumstances of the event to be fully examined
in a way that was not achieved by the trial process.
That a miscarriage of justice may have taken place has now
been accepted by the Commission. Logically, if Megrahi did not bring the plane
down, the question remains: how did it happen? It is also now appropriate to
ask what forces operated to allow the conviction to occur on the basis of what
is now acknowledged to have been a flawed case.
Claims of a cover up at Lockerbie, well supported from the
Parliamentary and public record, have fuelled various alternative explanations
for the cause of the event. They are based on documented reports that evidence
was planted at Lockerbie, that Police notebooks were destroyed, and evidence
removed from the scene without examination. The Observer’s Paul Foot reported
that Doctor David Fieldhouse certified and labelled 59 dead bodies under police
supervision. His labels were replaced with 58 ‘official‘ labels, and the 59th
body disappeared. Allan Faraday, who led evidence about a recovered bomb
fragment, is no longer considered accredited. And other material gathered from
test explosions was erroneously presented to the trial as actual recovered
evidence from the site.
These reports raise questions rather than support
conclusions. However, the key question that is not being asked is why was
Megrahi scapegoated, and who in Scotland permitted it?
Kochler overtly claimed US and Libyan officials in the
courtroom influenced the trial to yield a politically motivated outcome. Robert
Black disagrees, but does conclude that more subtle pressures may have been
felt by the presiding Judges. "It has been suggested to me, very often by
Libyans, that political pressure was placed upon the judges," he said.
"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." In other words, after 12 years, an 18 month trial,
extensive political wrangling, and seismic shifts in international relations
even to accommodate the trial, somebody had better swing. With devolution
bedding in, an SNP administration at Holyrood, and the introduction of the
Judicial Appointments Board breaking the link between the Government and the
Judiciary, it is now debatable whether those same pressures exist. The outcome
of the second appeal, and the emergence or otherwise of a full independent
inquiry, will be the test of the integrity of Scottish justice.
--------------------------
http://www.stevenraeburn.co.uk
Dr Jim Swire (jim@swirefamily.net)