Lockerbie, Double Jeopardy and Crown Office Spin?

Yesterday’s Scotland on Sunday ran a piece about the continuing Crown Office investigation into the Lockerbie bombing. I have some thoughts to offer on the article.

I should say that I am firmly in the camp, having read the judgements in the trial and the appeal, and having considered the evidence and arguments published as time has passed, including the concerns of the Scottish Criminal Cases Review Commission, that Mr al-Megrahi was wrongfully convicted.

Extracts from the piece are below, with my comments in bold below the relevant sections:-

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PROSECUTORS investigating the Lockerbie bombing are examining evidence that could implicate Al Amin Khalifa Fhimah, the Libyan acquitted of the atrocity, documents obtained by Scotland on Sunday suggest.

The Crown Office has always maintained that Abdelbaset Ali Mohmed al-Megrahi, the Libyan agent convicted of the 1988 bombing, did not act alone. Last month, prosecutors requested new hearings to be held in private in Malta. Scotland on Sunday understands the basis of those hearings related to the actions of Megrahi, Fhimah and others in the Libyan intelligence services.

Fhimah, a former station manager for Libyan Arab Airlines, stood trial alongside Megrahi at Camp Zeist. He was acquitted in 2001 by the presiding judge, Lord Sutherland, and returned home to a hero’s welcome in Libya. He could face a new prosecution under double jeopardy legislation passed by the Scottish Government last year.

Where to start?

This case was described as the biggest criminal investigation in the history of the Scottish justice system. More time and more money have been spent upon it than on any other inquiry, and one suspects that, adjusted for inflation, it will never be beaten. One hopes there is never an incident in future justifying such expenditure for the police inquiry.

But we have a case where, after many years, and the brilliant creativity of Professor Robert Black QC in devising a structure for the trial which satisfied both the UK and Libya, one of the accused was acquitted. Mr Fhimah was cleared of the charges and walked free from the court, an innocent man.

One of the concerns about the rush to bring in the so-called “double jeopardy” legislation in Scotland, allowing cases to be re-raised after acquittal, in certain limited and prescribed circumstances, was that this could allow the appearance of a vendetta by the police or prosecution, in continuing to pursue someone cleared by a court. One would never accuse the authorities of that, but the appearance of it looms large in this case.

Opponents of the legislation, which came about as a result of the allegedly flawed prosecution of the “world’s End” case, argued that it was a device which could be used to make up for prosecutorial or investigative failings, or indeed where the prosecution did not wish to accept or respect the verdict of the court.

Those, including the First Minister, who have repeatedly defended the verdict of guilty in respect of the late Mr al-Megrahi, both at the trial and at the appeal, have commented upon the robust nature of the investigation, and the great care taken by all of the judges to consider the evidence, to weigh it carefully, and to deliver a verdict in accordance with the evidence and the law.

Yet the same rigour is not applied to the verdict of acquittal passed in connection with Mr Fhimah. Here the Crown are happy to continue their investigations, with a view to bringing the case back to court. At the same time the Scottish authorities, and the Justice Secretary, Mr MacAskill, are accused of feet dragging in relation to the serious questions raised about Mr al-Megrahi’s guilt.

The article too refers to Mr Fhimah being acquitted by Lord Sutherland. In fact, his acquittal was a unanimous verdict by all three judges at the trial, Lords Sutherland, Coulsfield and McLean.

Yesterday the Crown Office refused to say whether Fhimah is one of the people being looked at by the cold case unit as a double jeopardy candidate.

It would be wrong, without evidence, to suggest that Crown Office is in any way responsible for the regular stories about this matter. (Google offers over 56,000 entries for a search into “double jeopardy” and Lockerbie.) However, after a weekend watching The Thick of It and listening to Yes, Minister, one looks at political stories, and this is a story about politics, wondering who benefits from the story appearing.

In this case it clearly does no harm to the Scottish Government to have Crown Office revealed as actively pursuing what are said to be miscarriages of justice. After all, there is a public interest in ensuring that criminals who escaped justice because of some technicality or loophole, or by having a smooth-talking lawyer, should not evade punishment.

Let’s ignore the fact that the judges in this case have been lauded for their verdict over Mr al-Megrahi, but, in the eyes of Crown Office are wrong over his co-accused.

However, documents sent along with a “commission rogatoire” – a formal request for judicial assistance – by the Crown Office to officials in Malta, reveal he is still in their sights. The Crown Office declined to disclose details of the letter, following a Freedom of Information request. However, it did include a “summary of facts”.

In it the Crown said: “The circumstances giving rise to this request are that it is alleged that the said Megrahi and Fhimah, acting in concert with others and with the Libyan intelligence services… caused an improvised explosive device to be placed among clothing and an umbrella, which had been purchased in Malta, within a suitcase which had been tagged so as to enable it to be carried on Air Malta flight KM180 to Frankfurt on 21 December, 1988.”

A Crown Office spokesman said: “The trial court accepted that Megrahi acted in furtherance of the Libyan intelligence services in an act of state sponsored terrorism and did not act alone. It would not be appropriate to offer further comment.”

The terms of the “summary of facts” and of the article itself lead one to the clear view that Mr Fhimah, as a member of the Libyan Intelligence Services, escaped justice, so efforts must be made to ensure the right verdict is arrived at now.

I would refer to the judgement in the Lockerbie case, which can be found here.

At paragraph 85 the court gave its reasons for acquitting Mr Fhimah. I reproduce relevant extracts below.

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Counsel for the second accused argued that even if it be accepted that the second accused did obtain tags and did supply them to the first accused, it would be going too far to infer that he was necessarily aware that they were to be used for the purpose of blowing up an aircraft, bearing in mind that the Crown no longer suggest that the second accused was a member of the Libyan Intelligence Service.

…

The Crown attach significance to the visit by the second accused to Tripoli on 18 December 1988 and his return two days later in the company of the first accused. As we have indicated, we cannot accept the evidence of Abdul Majid that he saw the two accused arriving with a suitcase. It follows that there is no evidence that either of them had any luggage, let alone a brown Samsonite suitcase.

…

We do not think it proper to draw the inference that the second accused went to Tripoli for the purpose, as the Crown suggested, of escorting the first accused through Customs at Luqa. There is no real foundation for this supposition, and we would regard it as speculation rather than inference. The position on this aspect therefore is that the purpose of the visit by the second accused to Tripoli is simply unknown, and while there may be a substantial element of suspicion, it cannot be elevated beyond the realm of suspicion. The Crown may be well founded in saying that the second accused would be aware of the security arrangements at Luqa, and therefore might have been aware of some way in which these arrangements could be circumvented.

The Crown however go further and say that it was the second accused “who was in a position to and did render the final assistance in terms of introduction of the bag by whatever means”. There is no evidence in our opinion which can be used to justify this proposition and therefore at best it must be in the realm of speculation.

Furthermore, there is the formidable objection that there is no evidence at all to suggest that the second accused was even at Luqa airport on 21 December. There were a number of witnesses who were there that day who knew the second accused well, such as Abdul Majid and Anna Attard, and they were not even asked about the second accused’s presence.

The Crown suggestion that the brief telephone call to the second accused’s flat on the morning of 21 December can by a series of inferences lead to the conclusion that he was at the airport is in our opinion wholly speculative.

While therefore there may well be a sinister inference to be drawn from the diary entries, we have come to the conclusion that there is insufficient other acceptable evidence to support or confirm such an inference, in particular an inference that the second accused was aware that any assistance he was giving to the first accused was in connection with a plan to destroy an aircraft by the planting of an explosive device. There is therefore in our opinion insufficient corroboration for any adverse inference that might be drawn from the diary entries. In these circumstances the second accused falls to be acquitted. (All emphases added)

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So, as far as the circumstantial case against Mr Fhimah goes, the Crown, at the trial, did not suggest that he was a member of Libyan Intelligence, and the witnesses who knew Mr Fhimah well were not asked at trial if he was present at the airport on the crucial date.

Bearing in mind the high quality of the counsel who appeared for the Crown, one assumes that the questions were not asked because they would not have produced the answers the Crown would have been relying on, and not through any lapse or oversight by the Crown.

If the purpose of the request for further evidence in Malta is to find evidence to place Mr Fhimah at the airport on the crucial day, then presumably, prior to any further prosecution, the Crown would have to give the court a cogent and compelling reason why the witnesses who did give evidence were not asked these vital questions.

It is rather sad to see that, when asked whether the Crown is still investigating Mr Fhimah, the response does not even mention him, nor the fact of his acquittal, instead trotting out the Libyan Intelligence line, although, as mentioned above, it was not the Crown’s position at the trial that Mr Fhimah was in that organisation.

In addition, one wonders how much has been spent by the Crown in continuing to seek evidence against Mr Fhimah, as compared to the amount spent by the Crown investigating whether or not Mr al-Megrahi was rightly convicted.

The answer, I am sure, would be that it is not for the Crown to establish the innocence of a convicted man – that is what the appeal process is for.

What would happen if, during these inquiries, the Crown discovered compelling evidence that Mr al-Megrahi had been wrongly convicted?

A cynic might suggest that it would not see the light of day. However, I am sure that justice would be done, and the evidence revealed, even if it shook the foundations of the guilty verdict which the Scottish Government has doggedly sought to defend since it was delivered.

The Justice For Megrahi campaign deserves huge credit for its continuing efforts, as does the lawyer, Professor Tony Kelly, who so ably took on Mr al-Megrahi’s case for the second appeal. Let’s hope that there is not a need for a Justice for Fhimah campaign at some point in the future.

 

Posted by Paul McConville

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