Pan Am Flight 103 bombing trial

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The trial began on May 3, 2000
The trial began on May 3, 2000

The Pan Am Flight 103 bombing trial began on May 3, 2000, which was 11 years, four months and 13 days after the sabotage of Pan Am Flight 103 on December 21, 1988.

A Scottish High Court of Justiciary was purpose-built at the neutral venue of Camp Zeist, Netherlands, a former United States Air Force base. Facilities for a high security prison were also installed there. For the duration of the trial - expected to last for up to a year - and any subsequent appeal, the Camp Zeist area was declared the sovereign territory of the United Kingdom and governed by Scots Law, under a bi-lateral treaty between the UK and Dutch governments.

Contents

[edit] Venue

The High Court of Justiciary at Camp Zeist
The High Court of Justiciary at Camp Zeist

Upon their indictment in November 1991, the Libyan government was called upon to extradite the two Libyan suspects for trial in either the United Kingdom or the United States. Since no bi-lateral extradition treaty was in force between any of the three countries, Libya refused to hand the men over but did offer to detain them for trial in Libya, as long as all the incriminating evidence was provided. The offer was unacceptable to the US and UK, and there was an impasse for the next three years.

In November 1994, President Nelson Mandela offered South Africa as a neutral venue for the trial but this was rejected by the then British prime minister, John Major. A further three years elapsed until Mandela's offer was repeated to Major's successor, Tony Blair, when the president visited London in July 1997 and again at the Commonwealth Heads of Government Meeting (CHOGM) in Edinburgh in October 1997. At the latter meeting, Mandela warned that "no one nation should be complainant, prosecutor and judge" in the Lockerbie case.

The eventually agreed compromise solution of a trial in the Netherlands governed by Scots law was engineered by legal academic Professor Robert Black of Edinburgh University and, as endorsing Britain's new, ethical foreign policy, was given political impetus by the then foreign secretary, Robin Cook. [1]

[edit] Accused

Abdelbaset Ali Mohmed Al Megrahi
Abdelbaset Ali Mohmed Al Megrahi

Two Libyans were accused of the crime. They were named as Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah. In the run-up to the trial, the Prosecution had considered bringing charges against Swiss businessman, Edwin Bollier, of the electronics firm Mebo Ag. But the Prosecution decided that, unless evidence to incriminate Bollier were to be adduced during the trial, he would not be included as a co-conspirator in causing the bombing.

Libya made three stipulations, when agreeing to hand over the two accused to the Scottish police: that they would not be interviewed by the police; no one else in Libya would be sought for the bombing; and, that the trial should be before three Scottish Judges, sitting without a jury. On April 5, 1999, over a year ahead of the start of the trial, Megrahi and Fhimah arrived in the Netherlands.

[edit] Charges

The two accused denied all charges leveled against them. Three outline charges were:

  • murder;
  • conspiracy to murder; and,
  • a breach of the Aviation Security Act 1982.

The full charges included the names of the murdered 259 passengers and crew of Pan Am Flight 103, and the eleven residents killed at Lockerbie in Scotland. [2]

[edit] Judges

The Scottish High Court of Justiciary at Camp Zeist, Netherlands was presided over by three senior Judges and an additional Judge (non-voting):[3]

[edit] Prosecution

There were five Lord Advocates from the 1991 indictment of the two accused Libyans until their trial in 2000 - three Conservative: Lord Fraser of Carmyllie, Lord Rodger of Earlsferry, Lord Mackay of Drumadoon, and two Labour: Lord Hardie and Lord Boyd of Duncansby. The latter led the Prosecution on behalf of the Crown. Advocates Depute Alistair Campbell QC and Allan Turnbull QC assisted. Alongside the Prosecution were seated U.S. Department of Justice representatives Brian Murtagh, who had helped draw up the indictment against the two accused, and Dana Biehl.

Five years after the trial, former Lord Advocate, Lord Fraser, who issued the arrest warrants in 1991, was alleged to have said that he was not entirely happy with the evidence presented against Megrahi during his trial in 2000, and in his subsequent appeal in 2002. However, he made it clear that this did not mean that he believed Megrahi to be innocent. According to The Sunday Times of October 23, 2005, Lord Fraser allegedly cast doubt upon the reliability of the main prosecution witness, Tony Gauci.[4]

[edit] Defence

Representing Megrahi were his solicitor, Alistair Duff, and advocates William Taylor QC, David Burns QC and John Beckett. Fhimah was represented by solicitor Eddie McKechnie, advocates Richard Keen QC, Jack Davidson QC and Murdo Macleod. Both defendants also had access to Libyan defence lawyer, Mr. Maghour.

[edit] Pre-trial hearings

Five pre-trial hearings took place: the accused waived their right to attend two procedural hearings at the high court in Edinburgh; they attended two hearings at Camp Zeist which were held in private; and, on December 7, 1999 they made their first public appearance before the Scottish Court in the Netherlands. At this public hearing the presiding Judge, Lord Sutherland, ruled that:

  • the two Libyans must face charges of conspiracy as well as murder;
  • they can be described as members of their country's intelligence services; and,
  • the start of the full trial is to be delayed by three months (from February 2, 2000).

[edit] Proceedings

A brown Samsonite hard-shell suitcase, with a modified Toshiba RT-SF 16 radio cassette recorder and samples of clothing from Malta, all replicating the alleged primary suitcase.
A brown Samsonite hard-shell suitcase, with a modified Toshiba RT-SF 16 radio cassette recorder and samples of clothing from Malta, all replicating the alleged primary suitcase.

Court proceedings started on May 3, 2000 with the Prosecution outlining the case against the accused and previewing the evidence which they expected would satisfy the Judges beyond reasonable doubt that the sabotage of PA 103 was caused by:

  • the explosion of an improvised explosive device (IED);
  • an IED that was contained within a Toshiba radio cassette player in a hard-shell Samsonite suitcase along with various items of clothing which had been bought in Mary's House, Sliema, Malta;
  • an IED triggered by the use of an MST-13 timer, manufactured by Mebo Ag in Switzerland; and,
  • the so-called primary suitcase being introduced as unaccompanied baggage at Luqa Airport in Malta, conveyed by Air Malta flight KM180 to Frankfurt International Airport, transferred there onto feeder flight PA 103A to Heathrow Airport, loaded into the interline baggage container AVE 4041PA at Heathrow, and put on board PA 103 in the forward cargo hold.

In the trial's second week, Detective Constable Gilchrist was asked about the piece of charred material that he and DC McColm had found three weeks after the PA 103 crash. DC Gilchrist attached a label to the material and wrote "Cloth (charred)" on it. The word 'cloth' was overwritten by the word 'debris'. DC Gilchrist's attempts to explain the overwriting were later described by the Judges as "at worst evasive and at best confusing."

There was no third week and, because of equipment problems in the courtroom, only a truncated fourth week. In week 5, Professor Peel of the Defence Evaluation and Research Agency (DERA) gave evidence concerning the baggage container AVE 4041PA.

Week 6 was devoted to the testimony behind screens of CIA agents and Bureau of Alcohol, Tobacco and Firearms officers relating to interception of arms caches (including MST-13 timers) in the West African countries of Senegal and Togo.

In week 7 Alan Feraday, also of DERA, gave evidence. Feraday presented the court with a simulated IED of the type alleged to have caused the sabotage of PA 103. Under cross-examination, he admitted the fragments of radio cassette and timer, found in DC Gilchrist's cloth/debris (charred) material, had not been tested for explosives residue. The Defence were, however, later criticized for having failed to challenge Feraday to explain why his note to Detective Chief Inspector William Williamson in September 1989, covering a Polaroid photograph of the timer fragment (identified in May 1989), said it was "the best I can do in such a short time."

Edwin Bollier of Mebo Ag was questioned in week 8. Bollier said his firm made a range of products including briefcases equipped to radio-detonate IEDs. He agreed that Mebo had sold 20 timers to Libya in 1985. Bollier was shown a number of printed circuit board fragments which he identified as coming from the Mebo MST-13 timer.

Joachim Wenzel, an employee of the Stasi, the former East German intelligence agency, testified behind screens in week 9. Wenzel claimed to have been Bollier's handler in the years 1982-85 and testified that Mebo had supplied the Stasi with timers. A Mebo employee, Ueli Lumpert, was asked to confirm his signature on a 1993 letter. The trial was then adjourned until July 12, 2000.

In week 11, Mebo lawyer Dieter Neupert filed an official criminal complaint against the Crown over what he alleged was a 'forged fragment of MST-13 timer'.[5]Tony Gauci of Mary's House, Sliema in Malta, testified that he had sold a number of items of clothing to one of the defendants, Megrahi. Wilfred Borg, Ground Operations Manager at Malta's Luqa airport, was questioned about Luqa's baggage handling procedures. A Mr Ferrugia confirmed that he had been a passenger on Air Malta flight KM 180 to Frankfurt on December 21, 1988.

Two Germans, Birgit Seliger and Evelin Steinwandt, confirmed in week 12 that they had also travelled on flight KM 180. Martin Huebner and Joachim Koscha were questioned about baggage handling procedures at Frankfurt airport.

Five more passengers on flight KM 180 testified in week 13. The captain of flight KM 180, Khalil Lahoud, also gave evidence and was asked to confirm that the aircraft's altitude during the flight had exceeded 30,000ft. This information was intended to demonstrate that an IED loaded at Luqa airport would have had a timed detonator rather than a barometric trigger. The trial was then adjourned until August 22, 2000.

In week 17, another four passengers on flight KM 180 were asked to testify. The following week, Abdul Majid Giaka, a defector from the Libyan intelligence service, appeared wearing sunglasses and a wig. Giaka, who had been on the US Witness Protection Program since July 1991, testified that Megrahi was a Libyan agent.

Rather than calling the defendants to the witness stand, their legal team sought to use the special defence of incrimination against the person or persons they believed were guilty of the crime. There was speculation that Mohammed Abu Talb, a convicted PFLP-GC member, would be called by the Defence to testify in week 19, and when he failed to appear the trial was adjourned for the next five weeks to allow new evidence from a "country in the Mid East" to be examined.

One of the last witnesses for the prosecution was broadcaster and politician, Pierre Salinger, who was questioned by prosecutor Alan Turnbull and by both defence counsel William Taylor and Richard Keen. After his testimony, judge Lord Sutherland asked Salinger to leave the witness box. However, the broadcaster responded:

"That's all? You're not letting me tell the truth. Wait a minute, I know exactly who did it. I know how it was done."

But Lord Sutherland told Salinger:

"If you wish to make a point you may do so elsewhere, but I'm afraid you may not do so in this court."[6]

Abu Talb finally gave evidence in week 25 and testified that he had been babysitting at home in Sweden when PA 103 was sabotaged on December 21, 1988.

The Crown concluded the Prosecution case in week 26. In its closing address for Fhimah in weeks 26 and 27, the Defence submitted there was no case for him to answer. There were no weeks 28 to 32.

The expected documents from the "country in the Mid East" - thought to be Syria - had not materialized by week 33, and the Defence confirmed that the accused would not take the witness stand. The Prosecution dropped two of the three charges against the accused, leaving the single charge of murder against both Megrahi and Fhimah. The Defence claimed the accused had no case to answer.

In week 34 the Defence argued that the IED started its journey at Heathrow, rather than Luqa airport in Malta. The Judges then retired to consider their verdict.

There was no week 35. The Judges announced their verdict on January 31, 2001 in week 36.

[edit] Verdict

In addition to the options of Guilty and Not Guilty, a third verdict of Not Proven was available to the Judges under Scots Law. The Judges announced their verdicts on January 31, 2001 and were unanimous in acquitting the second accused, Al Amin Khalifa Fhimah, of the murder charge. Fhimah was freed and he returned to his home on February 1, 2001 at Souk al-Juma in Libya. As for Abdelbaset Ali Mohmed Al Megrahi the Judges said: "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 of the remaining charge in the Indictment as amended." [7] Megrahi was sentenced to life imprisonment, with a recommendation that he should serve at least 20 years before being eligible for parole.

[edit] Appeal

five appeal Judges
five appeal Judges
William Taylor QC representing Megrahi
William Taylor QC representing Megrahi
Lord Cullen delivers the appeal decision
Lord Cullen delivers the appeal decision
Megrahi, a miscarriage of justice?
Megrahi, a miscarriage of justice?

The Defence team had just 14 days in which to appeal against Megrahi's conviction on January 31, 2001 and a further six weeks to submit the full grounds of the appeal. These were considered by a Judge sitting in private who decided to grant Megrahi leave to appeal. The only basis for an appeal under Scots law is that there has been a "miscarriage of justice" which is not defined in statute and so it is for the appeal court to determine the meaning of these words in each case [8]. Because three Judges plus one alternate Judge had presided over the trial, five Judges were required to preside over the Court of Criminal Appeal:

In what was described as a milestone in Scottish legal history, Lord Cullen granted the BBC permission in January 2002 to televise the appeal, and to broadcast it on the Internet in English with a simultaneous Arabic translation.

William Taylor QC, leading the Defence, said at the appeal's opening on January 23, 2002 that the three trial Judges sitting without a jury had failed to see the relevance of "significant" evidence and had accepted unreliable facts. He argued that the verdict was not one that a reasonable jury in an ordinary trial could have reached if it were given proper directions by the Judge. The grounds of the appeal rested on two areas of evidence where the Defence claimed the original court was mistaken: the evidence of Maltese shopkeeper, Tony Gauci, which the Judges accepted as sufficient to prove that the "primary suitcase" started its journey in Malta; and, disputing the Prosecution's case, fresh evidence would be adduced to show that the bomb's journey actually started at Heathrow. That evidence, which was not heard at the trial, showed that at some time in the two hours before 00:35 on December 21, 1988 a padlock had been forced on a secure door giving access to airside in Terminal 3 of Heathrow airport, near to the area referred to at the trial as the "baggage build-up area". Taylor claimed that the PA 103 bomb could have been planted then. Extracts of the full grounds of appeal are listed here [9].

On March 14, 2002 it took Lord Cullen less than three minutes to deliver the decision of the High Court of Justiciary. The five Judges refused the appeal, ruling unanimously that "none of the grounds of appeal was well-founded", adding "this brings proceedings to an end". The following day, a helicopter took Megrahi from Camp Zeist to continue his life sentence in Barlinnie prison, Glasgow.

[edit] SCCRC

The Scottish Criminal Cases Review Commission (SCCRC), which was established by Act of Parliament in April 1999, has wide-ranging powers to investigate cases where a miscarriage of justice is alleged, and has been reviewing Megrahi's case since 2004 [10]. The Commission normally expects to review a case and announce its decision within 12 months but is unlikely to complete the Megrahi review and decide whether or not to refer his case back for a further appeal against conviction until early in 2007. Meanwhile, three vacancies for SCCRC board members are expected to be filled at the end of 2006. According to The Times of October 29, 2005, speculation was mounting that the SCCRC will conclude that Megrahi has suffered a miscarriage of justice, and should be granted leave to make a further appeal against his conviction. The speculation follows remarks allegedly made by former Lord Advocate, Lord Fraser of Carmyllie, about the reliability of the key prosecution witness at the trial, Tony Gauci.

[edit] Remarks by Lord Fraser

The Sunday Times of October 23, 2005 reported that Lord Fraser of Carmyllie, who drew up the 1991 indictment against the two accused Libyans and issued warrants for their arrest, had now cast doubt upon the reliability of the main prosecution witness, Tony Gauci. Lord Fraser criticised the Maltese shopkeeper for inter alia being "not quite the full shilling" and an "apple short of a picnic".

The then Lord Advocate, Lord Boyd, reacted to the remarks, as follows:

"It was Lord Fraser who, as Lord Advocate, initiated the Lockerbie prosecution. At no stage, then or since, has he conveyed any reservation about any aspect of the prosecution to those who worked on the case, or to anyone in the prosecution service."

Lord Boyd has asked Lord Fraser to clarify his apparent attack on Gauci by issuing a public statement of explanation.

William Taylor QC, who defended Megrahi at the trial and the appeal, said Lord Fraser should never have presented Gauci as a crown witness:

"A man who has a public office, who is prosecuting in the criminal courts in Scotland, has got a duty to put forward evidence based upon people he considers to be reliable. He was prepared to advance Gauci as a witness of truth in terms of identification and, if he had these misgivings about him, they should have surfaced at the time. The fact that he is coming out many years later after my former client has been in prison for nearly four and a half years is nothing short of disgraceful. Gauci's evidence was absolutely central to the conviction and for Peter Fraser not to realise that is scandalous," Taylor said.

Tam Dalyell, former Labour MP who played a crucial role in organising the trial at Camp Zeist in the Netherlands, described Lord Fraser's remarks as an 'extraordinary development':

"I think there is an obligation for the chairman and members of the Scottish Criminal Cases Review Commission to ask Lord Fraser to see them and testify under oath - it's that serious. Fraser should have said this at the time and, if not then, he was under a moral obligation to do so before the trial at Zeist. I think there will be all sorts of consequences," Dalyell declared.

Gerard Sinclair, chief executive of the SCCRC, refused to say whether the Commission was investigating Lord Fraser's reported remarks. "Any investigation we carry out we seek to do so as rigorously and as thoroughly as possible," he said.

Robert Black, Professor Emeritus of Scots Law at Edinburgh University and a Lockerbie expert, described the alleged remarks as "an indication that various people who have been involved in the Lockerbie prosecution are now positioning themselves in anticipation of the SCCRC holding that there was a prima facie miscarriage of justice, and sending it back for a fresh appeal."

[edit] A fresh appeal?

Alarmed at rumours that Megrahi might be forced to drop a fresh appeal against his conviction, as part of a secret deal being negotiated between the US, Britain and Libya for his repatriation, UK Lockerbie relatives made strong representations in November 2005 to the SCCRC to complete its review of the case and not succumb to government interference.

Professor Robert Black, who devised the special arrangements for the original non-jury trial believes that, if Megrahi's case is ruled to be a miscarriage of justice and is referred back for a fresh appeal, the court authorities will require a bench of at least five Scottish Judges to preside at the Court of Criminal Appeal in Edinburgh. None of the Judges who sat at the trial or in the first appeal will be eligible to preside at the fresh appeal.

[edit] UN observer

Professor Hans Köchler, who was appointed as UN observer by UN Secretary-General Kofi Annan, criticised the trial in his report and evaluation. Köchler observed that the trial had been politically influenced in breach of legal traditions and principles, such as the Rule of law.[11]

[edit] Statistics

Some general statistics:

  • there were 84 court days (between May 3, 2000 and January 31, 2001)
  • 230 witnesses gave evidence
  • the Crown listed 1160 witnesses and called 227
  • the Defence listed 121 and called 3
  • witnesses came from the UK, USA, Libya, Japan, Germany, Malta, Switzerland, Slovenia, Sweden, the Czech Republic, India, France and Singapore
  • languages translated in court were Arabic, French, Czech, Japanese, Swedish, Maltese and German
  • there were 1867 documentary reproductions and 621 label productions (or exhibits - the largest of which was an aircraft reconstruction)
  • the aircraft reconstruction was the only one not conveyed to court (it remained at the Air Accident Investigations Branch premises at Farnborough in England)
  • there were 10,232 pages of court transcripts covering more than three million words
  • the cost of the trial itself was estimated at £60m
  • the running costs of the appeal were put at about £2m per month, which combined to produce a total bill of £75m, as estimated by the Scottish Executive
  • 20% of the running costs were met by Scotland's Justice Department
  • 80% of the running costs along with capital expenditure were borne by the UK government
  • the US government made a substantial contribution towards the extra costs of holding the trial in the Netherlands
  • the creation of the special court and prison complex at Camp Zeist cost £12m
  • original estimates for the entire proceedings were put at £150m (or double the actual spend)
  • compensation of £4.5 million ($8 million) was paid in August 2003 by Libya to each family of the 270 victims: a total of £1.23 billion ($2.16 billion)
  • contingency fees of £1.4 million ($2.5 million) were deducted from each family's compensation payment, and were retained by the US law firms involved: a total of £385 million ($675 million) in legal fees

[edit] See also

[edit] External links

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