When I first entered the Zeist court to attend the trial of Abdelbaset al Megrahi and Khalifa Fahima, I presumed that they must be guilty and that the evidence led in court would support this. Instead as the prosecution case unfolded I came to a firm conclusion that the case against them was not coherent and that much of the prosecution evidence was tainted.
Since then new evidence has again suggested gross interference with witnesses. In addition, Mr Megrahi’s second appeal, before it was withdrawn, had already revealed a failure by the Crown Office, aided by the Whitehall government Advocate General and even a PII certificate from the Foreign Secretary, to share information with the defence. Such behaviour is not in line with established practice in Scottish criminal law.
Unfortunately this behaviour is in line with the criticisms made on this very issue by Prof Hans Koechler, UN Observer at the Zeist trial. However it was the court hearings at Zeist which originally convinced me (and many other observers, including a number of highly qualified lawyers) that this verdict should never have been reached at Zeist.
Much that has come to light about the case since then has reinforced that position. However the evidence from the Zeist court itself seemed to me sufficient to exonerate the two accused and even to suggest an alternative and much more credible explanation for the origin of the attack. A horrendous aspect of this contention is that it appears that the British Government of the day (under Lady Thatcher) had received timely warnings about the attack, and had spectacularly failed to act upon them.
A Fatal Accident Inquiry(FAI) at Dumfries was instructed to assume the device that destroyed the plane had ‘come from Frankfurt’ (on its route from Malta). That FAI also found that the disaster had been preventable, and that the aircraft had been under the Host State protection of the United Kingdom at all relevant times.
In the light of what we know now, that raises 4 main questions for us relatives:-
1) Why did the British Government fail to prevent the disaster?
2) Why did the British Government as the ‘Host State’ fail to protect the aircraft?
3) Was it really true that the device came from Malta?
4) Why will no British Government since, allow an independent inquiry into 1,2, and 3, even 21 years later?
Following the completion of the main trial, question 3 became of much greater significance when it was seen as likely, that the prosecution case had actually been concealing a very different and much simpler explanation, embracing a break-in at Heathrow the night before Lockerbie which had been concealed till after the verdict had been reached in the main trial.
The Crown Office has denied to me in writing that it knew about this break-in while the trial was still running, yet it is hard to believe that the Whitehall Government of the day at least did not know of it, since the Metropolitan police anti-terror branch in London had investigated the break-in at the beginning of 1989.
It is also hard to see how the main trial could have continued had the issue of this Heathrow break-in been available for full exploration before the trial had started. The alternative explanation suggested, once the break-in became known, involved neither Malta nor Megrahi nor the Libyan regime. Instead it pointed directly towards Syria as home to the group called the PFLP-GC, who appeared to have acted as mercenaries for Iran, in her obtaining of revenge for the (accidental) shoot down of her airbus with 290 aboard, six months before Lockerbie.
Perhaps it is unfortunate for justice, that that explanation seemed to contain aspects which were not conducive to US political aims, and in retrospect it seems that this may have led to direct and indirect politically inspired intervention in the provision of evidence to the prosecution, and witnesses to the court.
It also happens that the alternative explanation follows closely the content of some of the clear and timely warnings which the UK Government had received. I have no explanation for the weakness of the defence. I have however come to the conclusion that the Crown Office, as the prosecuting entity (with a good deal of backing from the Government in Whitehall), colluded in the withholding of potentially evidential material from the defence team, thus making the outcome, as voiced by the UN’s observer Hans Koechler, ‘incomprehensible’.
Prior to the trial I had campaigned as strongly as I could, for trial under Scots law, believing it to be amongst the fairest available and fearing that any trial under US law would lead to summary conviction and the death sentence. I remain at a loss as to why their Lordships failed to see the weaknesses of the prosecution’s case. As usual it is easy to criticise them in retrospect, but this seems to me an unfair and unproductive exercise. Let us just mark their CVs with the phrase ‘could have done better’.
I believe we cannot leave it there: to do so would be grossly unfair to Mr Megrahi and his family, and an intolerable burden on the memory of those who died. Mr Megrahi himself now seems to wrestle with guilt feelings over having withdrawn his appeal.
Beyond that however I also believe that the outcome has severely damaged the previous good reputation of our judicial system in Scotland. That I think should concern us all, for our citizens need to be able to believe that their judicial system will act independently of political or any other improper external pressure. Indeed justice should be, and be seen to be a faithful bulwark for the citizen even against his own government should he feel unfairly treated by it.
I believe the fall-out from this dreadful case has demolished many thinking Scottish people’s confidence in the objectivity of their justice system, and that only an independent review of this case and the evidence for and against the verdict can restore that.
The Fatal Accident Inquiry, the investigation and the trial and first appeal were all of Scottish provenance, so were the findings of the SCCRC. Before we can answer the questions raised by the FAI findings concerning Whitehall, and in the absence of Mr Megrahi’s appeal, we need the Government of Scotland to find a way to re-examine what has been done in her name in this case. Without that, confidence in our judicial system cannot be restored.
Dr Jim Swire 7th October 2010