Lockerbie: The Flight from Justice

The bombing of Pan Am Flight 103 over Lockerbie on 21 December 1988 remains by far the deadliest act of terrorism ever to have occurred in the UK. All 259 of the passengers and crew on Flight 103 died. So did 11 people from Lockerbie.

The subsequent trial of of Abdelbaset al Megrahi and Lamin Khalifah Fhimah by a Scottish court sitting in the Netherlands – which led to Megrahi's conviction for the bombing in January 2001 – was the most conspicuous appearance that Scots law has ever made on the world stage. But the trial was fatally flawed. We are no closer to knowing who carried out the bombing than we were in December 1988.

A good deal of new evidence has emerged since Megrahi's conviction. Some of it will get a much-needed airing in the media this month, which marks the 25th anniversary of the bombing. But it isn't necessary to see the new evidence to know that justice wasn't done at the trial. That much should have been clear even before the court's verdict was delivered.

The 32 page special report written shortly after the trial for Private Eye magazine by the late Paul Foot remains one of the best introductions to the case.

Paul Foot concluded:

"The judges brought shame and disgrace to all those who believed in Scottish justice, and have added to Scottish law an injustice of the type which has often defaced the law in England. Their verdict was a triumph for the CIA, but it did nothing at all to satisfy the demands of the families of those who died at Lockerbie – who still want to know how and why their loved ones were murdered."

The report is essential reading and can be read here. The text of the final chapter of the report is reprinted below.

Chapter Four ...and error
THREE LORDS LEAPING TO CONCLUSIONS

by Paul Foot from his report "Lockerbie: The Flight from Justice", Private Eye, 2001

It [the written opinion of the judges, "a remarkable documentthat claims an honoured place in the history of British miscarriages of justice" Paul Foot says ] deals only in passing with the defence submissions that the PFLP/ Autumn Leaves gang may have been responsible for Lockerbie.

"We accept that there is a great deal of suspicion as to the actings of Abu Talb and his circle, but there is no evidence to indicate that they had either the means or the intention to destroy a civil aircraft in December 1988"(para 81). No means, that is, beyond working with a bombmaker who specialised in disguising explosive devices in cassette recorders so that they could be smuggled on to aircraft. No intention except visits to airports and the studying and hoarding of aircraft schedules, including some from Pan Am.

Where did the bomb suitcase first get on a plane? The judges worked their way carefully through the theory that a bomb suitcase was put on a plane at Luqa airport. The tight security arrangements at Luqa airport, they conceded, "seem to make it extremely difficult for an unaccompanied and unidentified bag to be shipped on a flight out of Luqa. After discussing the evidence of Maltese airport officials that it was impossible or highly unlikely that a bag could be introduced undetected at Arriving for trial in Holland: Lamin Fhimah former official of Libyan Arab Airlines who worked at Luqa airport, Malta the check-in desks or in the baggage area or by approaching the loaders", the judges concluded: "If therefore the unaccompanied bag was launched from Luqa, the method by which that was done is not established by the Crown. 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 case" (38).

There was no evidence that an unaccompanied bag went on the plane at Malta – but lo and behold there was, as far as the judges were concerned, plenty of evidence that an unaccompanied bag arrived from Malta at Frankfurt. The judges sailed happily past the defence objections to the accuracy of the documents on this matter. There was, they agreed, some evidence that the suspect bag might have come from a flight from Damascus, and the records did suggest that an unaccompanied bag from Warsaw may have been coded in to the system taking it to Pan Am 103A. There may have been discrepancies in the times and numbers of bags arriving at the relevant coding system, but some of these could be accounted for by figures relating to other flights and "the remaining discrepancy might be accounted for as late arrival luggage which, according to some of the evidence, might not go through the automated system".

What about the x-ray system at Frankfurt? Would that not have caught the Toshiba bomb, especially after the evidence that Kurt Maier, the x-ray operator, was a careful and conscientious worker who had worked out a drill for spotting electronic equipment containing bombs? The judges thought not: "Mr Maier’s description of what he looked for does not suggest that he would necessarily have claimed to be able to detect explosives hidden in a radio cassette player" (34). (Note the use of that useful word "necessarily").

All in all, the conclusion was emphatic: "None of the points made by the defence seems to us to cast doubt on the inference from the documents and other evidence that an unaccompanied bag from KM 180 was transferred to and loaded onto PA 103A". (35)

What of the case, so carefully presented by Mr Taylor, that the bomb may have gone on to a plane for the first time at Heathrow, London?

The judges recited the evidence of the loader John Bedford, given to police so soon after the bombing, that, after coming back from a tea break, he discovered a "maroony brown Samsonite" case in the luggage container in which the explosion later occurred. He had not put it there himself. He said his colleague Sulkash Kamboj told him he had put the case there – but Kamboj denied it.

The judges fought their way through this contradiction by believing Bedford and not believing Kamboj. But how did they deal with the powerful argument that a brown Samsonite case, of the type in which the explosion actually occurred, was put on the plane at Heathrow in a position extremely close to the place where the bomb eventuallywent off? This, they reckoned, would have required re-arrangement of the luggage before it was finally loaded. "But if there was such a re-arrangement", they said, "the suitcase described by Mr Bedford might have been placed at some remote corner of the container."

Note again the judicial "might" to provide an explanation for which there was no evidence at all. True, the Samsonite might have come from Malta via Frankfurt. There was no evidence of a Samsonite at either place. But there was evidence of a Samsonite going in curious circumstances onto Pan Am 103 at Heathrow.

Finally, what had the judges to say about the amazing coincidence that a bomb of the type normally made by the PFLP-GC would have been set off by an ice-cube timer, which would have exploded some 38 minutes after take off – and the bomb went off over Lockerbie exactly 38 minutes after take off? So impressed were the judges by thiscoincidence that they did not refer to it.

They concluded that the Lockerbie bomb was not set off by an ice-cube timer, but by an MST-13 timer. The evidence for this came from the forensic scientists Hayes, Fereday and Thurman. In June 1990 a posse of Scottish detectives had been over to Washington to test Mr Thurman’s theory that a fragment found from the Lockerbie debris looked like the circuit board of an MST-13.

The judges noted the various difficulties that had arisen in the finding of the fragment. The overwriting of its label by DC Gilchrist was inexplicable. The policeman’s explanation to the court, said the judges, was “at worst evasive and at best confusing” (13). They noted, too, the re-pagination of notes by Dr Hayes from the moment he started to deal with the fragment, but dismissed this as “of no materiality”. Not material either, apparently, was the second fourmonth delay until Mr Fereday sent the fragment to the Scottish police. None of these things worried the judges. "While it is unfortunate," they concluded, "that this particular item which turned out to be of major significance to this enquiry despite its minuscule size may not initially have been given the same meticulous treatment as most other items, we are nevertheless satisfied that the fragment was extracted by Dr Hayes in May 1989 from the remnant of the Slalom shirt found by DC Gilchrist and DC McColm."

The fragment led to the MST-13 which led to Edwin Bollier, whom the judges found a most unsatisfactory witness, prone at best to glaring contradictions and at worst to delusions, fantasy and lies. Nevertheless, the judges concluded, Bollier had sold timers to the Libyan military, had tested some of them in the Libyan desert, and had gone to Libya to sell MST-13 timers shortly before the Lockerbie bombing. Mr Bollier, they noted, had also had business dealings with Abdelbasset Megrahi, the first accused, and had rented his firm an office in Zurich – though there was no evidence that he had met Megraghi on his visit to Libya in December 1988, still less that he conveyed a timer to Megrahi there. The judges also conceded that Bollier had also sold MST-13 timers to the former East German secret police (the Stasi), but concluded, nevertheless, that the Lockerbie bombing was "of Libyan origin".

The three main witnesses in the trial, the judges concluded, were the grass Giaka, whose evidence they discounted, Bollier the arms salesman, most of whose evidence they discounted, and the only witness they found reliable, Tony Gauci, the Maltese shopkeeper.

Despite the dramatic shifts in Mr Gauci's identification of the man who bought the clothes that ended up in the bomb suitcase, the judges responded warmly to him. They did not see anything significant in the fact that his first identification of Megrahi as the clothes-buyer was in February 1991, more than two years after the bombing – during which time he had seen scores of police photographs and partidentified two Palestinian terrorists.

The judges conceded that the difference between Gauci's original description of the man as six feet tall and 50 years of age and Megrahi’s actual height and age (five feet eight inches, 37 years of age) was “a substantial discrepancy” (68). But Gauci’s identification was, they concluded, "entirely reliable". In what must have been a novel interpretation of Scottish law, they went further. “There are situations,” they said, “where a careful witness who will not commit himself beyond saying that there is a close resemblance can be regarded as more reliable and convincing in his identification than a witness who maintains that his identification is 100 per cent certain” (69).

On what date were the clothes bought? As we have seen, a crucial factor was the weather. The man who bought the clothes bought an umbrella which he put up against the light rain that was falling. There were two possible dates when Tony Gauci would have been alone in the shop while his brother Paul was watching football: 23 November and 7 December.

"There is no doubt," said the judges, "that the weather on 23 November would be wholly consistent with a light shower between 6.30 and 7.00pm. While Major Mifsud’s evidence was clear about the position at Luqa, he did not rule out the possibility of a light shower at Sliema. Mr Gauci’s recollection of the weather was that 'it started dripping – not raining heavily' or that there was a 'drizzle’'and it only appeared to last for the time that the purchaser was away from the shop to get a taxi."

Then there was the conclusion. "Having carefully considered all the factors relating to this aspect we have reached the conclusion that the date of purchase was Wednesday December 7." Among the factors not very carefully considered was that Major Mifsud had estimated the chances of rain at most at 10 per cent, that there was no rain at all five kilometres away at Luqa. But perhaps the factor most carefully considered was not meteorological at all – that Abdelbasset Megrahi was not even in Malta on 23 November and therefore could not have bought the clothes on that date.

The conclusions followed swiftly. Megrahi, though he was nothing like six feet tall and nowhere near 50, had bought the clothes and an umbrella to protect him from the rain on a day it most probably was not raining. He was a business associate of Bollier, and had never bought any timers from him. There was no evidence at all that he had made the bomb, packed it in a case and put it on the plane at Malta, but he obviously had.

Paragraph 86 of the judgement starts: "We now turn to the case against the first accused", and quickly makes it clear that any evidence against the second accused, Fhimah, cannot apply to the first. There were then four paragraphs left. The first starts with the observation that on 15 June 1987, eighteen months before Lockerbie, Megrahi was issued with a false passport, which had been used on visits to Nigeria, Ethiopia, Saudi Arabia and Cyprus.

Paragraph 88 deals with the identification of Megrahi by Tony Gauci. "While recognising that this is not an unequivocal identification...it could be inferred (infer is one of the judges’ favourite words) that the first accused was the person who bought the clothing which surrounded the explosive device." Naturally, "if he was the purchaser of this miscellaneous collection of garments, it is not difficult to infer that he too must have been aware of the purpose for which they were being bought".

Add this to the fact that he was "involved with Mr Bollier, albeit not specifically in connection with MST timers" and had been in Malta on 20th and 21st December 1988, and "it is possible to infer that this visit under a false name the night before the explosive device was planted at Luqa, followed by his departure for Tripoli the following morning at or about the time the device must have been planted, was a visit connected with the planting of the device". That paragraph, perhaps unintentionally, also contained a sound explanation as to why Megrahi had a false passport, "he was a member of the JSO (Libyan intelligence) occupying posts of fairly high rank".

Paragraph 89 opened with a curious disclaimer. "We are aware that in relation to certain aspects of the case there are a number of uncertainties and qualifications. We are also aware that there is a danger that by selecting parts of the evidence which seem to fit together and ignoring parts which might not fit, it is possible to read into a mass of conflicting evidence a pattern or conclusion which is not really justified."

Quickly abandoning their own precautions about these matters, the judges concluded, unanimously, that the case against Megrahi "does fit into a real and convincing pattern. There is nothing in the evidence which leaves us with any reasonable doubt as to the guilt of the first accused and accordingly we find him guilty".

There was, however, nothing remotely real or convincing (let alone any kind of pattern) in the case against Megrahi.

There was no evidence that the bomb went on at Malta, still less any evidence that Megrahi put it there. All the other evidence against him – including the theory that the Lockerbie bomb was set off by an MST-13 timer, the vague nature of the Gauci identification over a period of more than ten years and the date the clothes were bought – were all plagued by precisely the “uncertainties and qualifications” mentioned by the judges. The judges, moreover, under Scottish law had the option of finding the case against Megrahi "not proven" – though in truth the only proper verdict was not guilty.

In these circumstances the judgement and the verdict against Megrahi were perverse. The judges brought shame and disgrace to all those who believed in Scottish justice, and have added to Scottish law an injustice of the type which has often defaced the law in England. Their verdict was a triumph for the CIA, but it did nothing at all to satisfy the demands of the families of those who died at Lockerbie – who still want to know how and why their loved ones were murdered.

In February 1990, a group of British relatives went to the American embassy in London for a meeting with the seven members of the President’s commission on aviation security and terrorism. Martin Cadman remembers: "After we’d had our say, the meeting broke up and we moved towards the door. As we got there, I found myself talking to two members of the Commission – I think they were senators. One of them said: 'Your government and our government know exactly what happened at Lockerbie. But they are not going to tell you.' " Eleven years later, after a prolific waste of many millions of pounds and words, that is still the position.

Evaluation by Dr. Hans Köchler

The report by Paul Foot includes, as an appendix, the Report on and evaluation of the Lockerbie Trial conducted by the special Scottish Court in the Netherlands at Kamp van Zeist by Dr. Hans Köchler, University Professor, international observer of the International Progress Organization nominated by United Nations Secretary-General Kofi Annan on the basis of Security Council resolution 1192 (1998)

Dr. Hans Köchler concludes:

Regrettably, through the conduct of the Court, disservice has been done to the important cause of international criminal justice. The goals of criminal justice on an international level cannot be advanced in a context of power politics and in the absence of an elaborate division of powers. What is true on the national level, applies to the transnational level as well. No national court can function if it has to act under pressure from the executive power and if vital evidence is being withheld from it because of political interests. The realities faced by the Scottish Court in the Netherlands have demonstrated this truth in a very clear and dramatic fashion – the political impact stemming, in this particular case, from a highly complex web of national and transnational interests related to the interaction among several major actors on the international scene.

Read the full Special Report by Paul Foot on the Lockerbie case (pdf document)

More About the Lockerbie Tragedy