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Lockerbie Trial is an Historic Miscarriage of Justice

December 29th 2008

Terrorism - Lockerbie
Pan Am Flight 103 at Lockerbie

December 2008 has had more than its share of stories about miscarriages of justice. But little has been said the victim of what many see as the biggest miscarriage of justice in Scottish legal history: Abdelbaset Ali Mohmed al-Megrahi, the man convicted of blowing up Pan Am Flight 103 en route from London to New York on December 21, 1988.

For many years, it looked as if there would be no trial over Lockerbie. British and U.S. governments believed Colonel Gaddafi would never hand over the two Libyan intelligence officers accused of the bombings, which some regarded as fortunate, as they believed the evidence against Libya would not stand up in a court of law.

But thanks largely to the persistence of Nelson Mandela, 12 years after the bombing a trial did take place. In exchange for the lifting of sanctions, Gaddafi handed over the two accused men and the Scottish court swallowed almost the whole improbable story. On January 31, 2001, Megrahi was convicted of the mass murder of 259 passengers and crew, as well as 11 people on the ground in the village of Lockerbie. He is now serving a life sentence in a Scottish jail. His co-accused, Al Amin Khalifa Fhimah, was acquitted.

Megrahi's conviction was a shocker. No material evidence was presented linking him to the bombing, let alone any evidence that he put the bomb on the plane or that he handled any explosives. Even the prosecution subsequently questioned the credibility of its star witness.

Nevertheless, keen to move on, Libya accepted responsibility for the bombing although it never accepted guilt. Gaddafi paid $2.7 billion (£1.8 billion) in compensation to the victims' families – $10 million for every victim. The final payment was made in 2008. U.S. lawyers took approximately a third of the final amount. But the economic and humanitarian price for Libya was far higher: UN sanctions over an 11-year period inflicted billions of dollars' worth of economic damage on Libya and prevented thousands of Libyan citizens from traveling abroad.

The central pillar of the prosecution's case was that Megrahi wrapped the bomb in clothes before checking it onto a plane in Malta without boarding it  himself. The bomb, the prosecution alleged, was subsequently transferred at Frankfurt onto the flight to London, and then loaded onto the flight to New York. Two years after the bombing, Granada TV in Britain ran a program about the bombing featuring a dramatic reconstruction, in which a bag containing a bomb was loaded onto an Air Malta flight by a sinister-looking Arab, who then sloped off without boarding. Upset by the damage to its reputation, Air Malta sued Granada TV. The airline's solicitors compiled a dossier of evidence demonstrating that all the bags checked onto that flight were accompanied by passengers and none traveled on to London. The evidence was so convincing that Granada TV settled out of court.

Since the British Crown never had much of a case against Megrahi, it was no surprise when the Scottish Criminal Cases Review Commission (SCCRC) found prima facie evidence in June 2007 that Megrahi had suffered a miscarriage of justice and recommended that he be granted a second appeal.

For 11 years, while legal proceedings were pending and throughout the trial, the British Government argued that a public inquiry into Lockerbie was not appropriate as it would prejudice legal proceedings. After the conviction, it switched tack, arguing instead that no public inquiry was necessary. But if the conviction were overturned, there would no longer be a reason to hold back. For Megrahi, this cannot come soon enough. In September, he was diagnosed with advanced terminal prostate cancer.

The British Government is preparing for Megrahi to be transferred to Libya for the rest of his sentence. This would eliminate the risk of an acquittal and lessen the chance of a subsequent inquiry. Applications for a transfer cannot be submitted while an appeal is pending, which for the Government raises the convenient prospect that Megrahi will abandon his appeal so he can die at home. But letting Megrahi die a condemned man reduces the chance of Scottish prosecutors, the police, various British intelligence services plus many American and other foreign bodies being asked a lot of difficult questions. In November 2008, a general agreement on the exchange of prisoners was signed between Libya and Britain paving the way for such a transfer. The agreement will be ratified in January 2009.

"The Crown and the prosecution are using every delaying tactic in the book to close off every route available to Megrahi except prisoner transfer, as this means he has to abandon his appeal," commented Professor Robert Black Q.C., the Scottish lawyer who was the architect of the original trial who feels partly responsible for the miscarriage that occurred. "It is an absolute disgrace. It was June 27, 2007 when the SCCRC released its report and sent its case back to the criminal appeal court, and here we are 18 months later and the Crown has still not handed over all of the material that the law requires it to hand over and it is still making every objection conceivable."

There are, however, two obstacles to the British plan. Firstly, the decision to transfer Megrahi lies with the Scottish First Minister, Alex Salmond. Upset that the Government reached an agreement over Megrahi without consulting him first, Salmond has ruled out any transfer.

Secondly, whether Megrahi dies in jail in Scotland or Libya, under Scottish law his appeal can still go ahead without him. "Any interested person can continue the case. In this case one of Megrahi's children could continue with the appeal to clear their father's name," says Professor Black.

If Megrahi didn't do it, who did?

Hugh Miles is the author of Playing Cards in Cairo, and Al Jazeera: How Arab TV News Challenges America. 

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