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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9 Comments

Filed under Criminal Law, Double Jeopardy, Lockerbie

9 responses to “Lockerbie, Double Jeopardy and Crown Office Spin?

  1. Paul,
    praise should also be given to John Ashton for his thorough and informative book, Megrahi: You are my Jury, Which I urge anyone with an interest in the case to read. Whilst the book does not catagorically prove Megrahi’s innocence, it certainly casts real doubt on the integrity of the conviction.

  2. Geddy Lee.

    The remarkable site.. Consortiumnews.com. Did a fantastic investigation into the Lockerbie bombing proving the real culprits where nothing to do with Lybia.

    They provide transcripts from the trial, and even the confession from the then editor of the Scotsman newspaper, where he admitted that he was pressured by “Senior Police” and Government officials into changing the story from Iran /Syria to Lybia without any explanation to the people of Scotland.

    Both the UK and the US stated they were 100% convinced of Iran?Syria’s guilt, with the yanks going as far as naming the actual bombers.

    The site explains why they had to change to Lybia plus reams more info on the case that the MSM refuses point blank to expose.

    The site is a MUST READ forall those who care about truth and justice.

  3. Marching on Together

    “After all, there is a public interest in ensuring that criminals who escaped justice because of some technicality or loophole……should not evade punishment.” Tut tut tut. By technicality or loophole, you mean the court applying what the law actually is, to the horror of the prosecution and the tabloid mob. You should know better than that.

  4. Morag

    If we think about how much money has been spent on this farce so far, imagine the consternation if the Crown Office realised it was right back at square one, return to 29th December 1988, do not pass go, do not collect £200?

    Why do I choose that date? Because it’s the day before Detective Chief Inspector John Orr, Head of the Lockerbie Inquiry, issued a press release saying that the bomb had come in from Frankfurt on the feeder flight, and therefore Heathrow was not implicated. This was itself a few days before the first foothills of the eventual mountain of evidence emerged showing that the bomb had been sneaked into the baggage container in the interline shed at Heathrow in the late afternoon.

    The first witness statement indicating that Heathrow might well be indicated was taken on 3rd January. More detail emerged on 9th January. More important information was added on 10th January. A forensic report dated 15th February pretty much clinched it. In the face of all this, and masses of additional detail that mounted and mounted over the following year and more, Mr. Orr stuck tenaciously to his guns. It wasn’t Heathrow.

    This is all the more inexplicable when one considers that for the first eight months of the inquiry the German police were sitting on the Frankfurt transfer baggage records, telling the Scottish police they didn’t exist. The Scottish police had no credible leads from the Frankfurt end, and the leads they did follow petered out. Before mid-August 1989 they had nothing at all. But even in the face of this the investigation steadfastly turned its face against the very suggestion that Heathrow might be the scene of the crime, and sent the German police away with a flea in their ear when they tried to advance that theory. The evidence that emerged in August suggesting an unaccompanied item of luggage had been transferred from the Air Malta flight was always tenuous, but they seized on it with alacrity and never looked back. Not even when evidence from Malta showed there was really no way an unaccompanied item could have travelled on that flight.

    To my mind, this is the real scandal of Lockerbie, and the one we need the public inquiry into almost more than anything. Why would any major terrorist inquiry ignore absolutely compelling evidence that might well have led to the swift identification and apprehension of the murderers? It’s senseless.

    Then, what about the evidence suggesting that the Crown Office realised this had happened, while they were preparing for the trial, and reacted accordingly? The above point about Crown counsel not asking questions because it knew the answers would not support its case is extraordinarily well made. It goes double as regards evidence and witnesses it decided not to call at all. Much speculation was encouraged in the trial as regards a supposed rearrangement of the items placed in the container in the interline shed when the luggage from the feeder flight was added. The one thing that wasn’t done was to call the man who actually added the Frankfurt luggage, and who was being assumed to have moved the Heathrow-loaded items. Maybe someone needs to ask why not.

    Another thing that wasn’t done was to lead the evidence showing how many items of luggage were put in the container at Heathrow, whose they were, when they arrived, what they looked like, and what condition they were in on recovery. Without that evidence neither the court nor the interested observer has the information necessary to find out whether the extraordinarily suspicious suitcase described as being in the container at 4.15 could after all be satisfactorily matched to a passenger as legitimate luggage.

    The Crown had all that information. It is quite clear, and quite simple, and absolutely devastating to their case. It proves the suitcase which appeared in the container in the afternoon, while it was sitting unattended at Heathrow airport, was the bomb that exploded over Lockerbie. Beyond any reasonable doubt. Special pleading of the parallel universe variety is required to pretend it could have been anything else.

    The Crown had all that information in 1999. It chose not to place it in front of the court. Go figure.

  5. Geddy Lee.

    The Scottish media, with their cowardly silence, and refusal to investigate, are complicit in this dreadful scandal.

    Not one single hack has the journalistic integrity to ask the relevant questions.

    For instance, why the sudden, mass cancellation of seats by US embassy staff, one day before takeoff, especially as this was the last flight home?

    Why did the judges ignore the rules governing Scottish law when accepting the US gover4nments lsaughable evidence. Acceptance that brought gasps of amazement from court observors, including the Scottish legal expert who wa stasked with setting up the court in the first place?

    There are so many questions left unanswered, thanks to Scotlands hopeless hacks. Maybe one day, 0ne of them will gtrow a spine and demand answers.

    Sadly, there is no sign of that in the near future.

  6. Morag

    “…. why the sudden, mass cancellation of seats by US embassy staff, one day before takeoff, especially as this was the last flight home?”

    You mean, that sudden mass cancellation that didn’t actually happen? That allegation was investigated in detail at an early stage, as part of the PCAST report, and it was proved there was no truth in it at all.

    For another point, the judges specifically rejected Giaka’s evidence, which is the only part that could be described as owned by the US government. The case they actually accepted was an entirely home-grown farrago of nonsense.

    One of the big problems in this case is the widespread acceptance of “facts” that are completely mythical. It’s distressingly easy for the authorities to reject challenges, when these challenges are founded on falsehoods.

  7. Geddy Lee.

    I challenge anyone with a brain to read the evidence found at this link
    and then still insist Megrahi was guilty.

    Remember, the Scottish press have never printed any evidence pertinent to the case, just the usual cringing Government propaganda.

  8. Charles Young

    Geddy Lee I think you will find that one Scottish journalist, Macello Mega (who attended the trial) has consistently questioned the propriety of the proceedings and the verdict at The Hague.

    I wasn’t at the trial or the appeal but as soon as I read of the UN Observer noting that US Justice Department supervisors (un-named on the list of those appearing) were in the court apparently supervising the prosecution my mind was made up. The trial was a farce from that point onwards.

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