24 May 2011
The Quiet Storm
http://www.firmmagazine.com/features/932/The_Quiet_Storm.html
She is quiet of voice and slight in stature, but to lawyers everywhere she is Supergirl. With a case history that includes overturning miscarriages such as the Guildfour Four and Birmingham Six, she has turned her attention to Scotland’s shame: The Megrahi case. Steven Raeburn reports.
The conviction of Abdelbaset Ali Mohmed Al Megrahi was almost universally derided from the moment it was confirmed, after an uncertain and unconvincing show trial, transparently controlled by the intelligence services of the nations who, as Nelson Mandela said, should not have been permitted to act as complainer, judge and executioner in their own cause. Since then, the Scottish authorities, with the evident complicity of successive UK governments in Westminster, have collaborated to frustrate, delay, thwart and exhaust the efforts of campaigners as diverse as John Pilger, Kate Adie, Archbishop Desmond Tutu, the Miscarriages of Justice Organisation, our own Scottish Criminal Cases Review Commission, the families of the deceased, Noam Chomsky, Robbie the Pict, Tam Dalyell, Christine Grahame, and a practical army of journalists who have satisfied themselves and staked their own reputations on their belief that the conviction is unsound. And now their ranks have been joined quietly and without ceremony by a legal heroine to many, the powerfully unassuming, devastatingly effective and always understated mistress of justice, Gareth Peirce. Her own landmark cases included the exposure of top-down state corruption that convicted the innocent Guildford Four and Birmingham Six, and her involvement in Pan Am 103 was prompted in part by her learning that the same discredited personnel whose flawed evidence was instrumental in driving those innocents to jail under a juggernaut of deceit, were also the providers of the key flawed evidence in the Megrahi case. Her intervention adds to factors, including the unprecedented fourth hearing at the Holyrood Petitions committee of evidence in the case, that may yet lead to a heavily resisted, inevitably embarrassing, can-of-worms-openingly necessary inquiry into the entire miserable, seedy affair. “One of the ways out of ever reopening a case that has gone wrong is to find an avenue where someone or something else can bear responsibility,” Peirce told The Firm. “For instance, in the case of the Birmingham Six or Guildford Four, where for years and years and years, successive courts of appeal and politicians refused to take on responsibility for reopening it, the excuse was always: ‘a jury looked at this - the jury is the arbiter of fact in our jurisdiction’. And of course it would be very wrong to disturb the verdict of the jury, who saw and heard all the evidence. That was a device that was resorted to year after year to excuse not reopening these cases, even when they screamed out for it. So one way is to hide behind that. “Observing Lockerbie, there is some of the same. We hear that the High Court judges heard the case and the appeal judges reinforced the decision, and therefore that is how it should stand. There is that excuse for suggesting that the tribunal of fact was in the best position to know. Whereas in each of these cases it is very clear that for one reason or another it wasn’t, and didn’t know half the picture.” The failings in Scots legal culture to have the ability to correct the stain it created shows either the malleability of the rule of law, or the nefarious will of the civil service and rogue elements of the Crown Office to bully a pliant system that has demonstrably inadequate checks and balances. Perhaps a combination of both is at fault, given the ease with which the emergency Cadder legislation contained a prefabricated sting in the tail that seemed designed to frustrate any future judicial consideration of the case against Megrahi. A case which has crumbled when tested against logic & neutral scrutiny of the available evidence. The Petitions Committee, in its last hearing prior to the Scottish election, proposed to include the call for an inquiry into the in-tray of the post May 5th assembly. Peirce however does not have full confidence that the will to convene an inquiry at Government level is greater than the will to frustrate one. “There is an extra factor here. Scotland and England both say the other is the responsible jurisdiction, even when it is very clear that you cannot compartmentalise responsibility for what went wrong,” she says. “Because you have two countries involved, each is passing the parcel to the other. The letter from the Scottish Government to the petitions committee says that in law, under the Inquiries Act, that Scotland cannot have an inquiry unless it is on a devolved issue, and the criminal justice system would be a devolved issue. But the letter adds that there are international implications, and therefore any inquiry should either be joint with England, or in England. “There is a lot of truth in that, but as we saw with Megrahi’s return to Libya, Westminster claimed it was all the responsibility of Scotland, leaving Kenny MacAskill out on a limb. Yet, there is Blair busy with Gadaffi, desperately imploring Libya to make an application under the Prisoner Transfer Agreement. There are layers and layers of deceit here.” Layers and layers of deceit... It is that last, self evident truth that many Scottish citizens find quite difficult to come to terms with; the effort required to maintain the fiction of the Crown case, and the active will of the participants to sustain a fragile and fantastic deception. What she and those who have inquired with any rigour into this affair can see clearly, is that the effort and consensual coordination between the Governments of Washington, London, Tripoli and Edinburgh, and their functionaries at successive levels of responsibility from ministerial to Police level, have been engaged with some vigour in precisely that. And it is nothing new, being a reality she first encountered in the 1970s. “In the most notorious cases, everyone played their part, absolutely everybody,” she says. “The lawyers who represented the defenders were disastrously inadequate, or worse. Defence experts failed them, police were fabricating evidence as well as extracting false confessions from brutality. Forensic scientists were cooking the books, and judges from start to finish were either turning a very blind eye or actively assisting the prosecution to get convictions and sustain the convictions year after year. “A big part of the blame lies within those who form the criminal justice system. It looks as if in the prosecution of the Lockerbie case, the defendants met the same fate, even to the extent of the same personnel featuring, in the person of the forensic scientists.” It must indeed have taken some particular effort to ensure that the principal forensic analyst, Thomas Hayes, employed by the Crown to testify against Abdelbaset Al Megrahi was the very same discredited analyst who was proven to have fabricated his evidence in the manufactured case against the Guildford Four. It was he and Alan Feraday who testified that the key forensic evidence, a fragment of circuit board, not only survived the explosion of Pan Am 103 (which global scientific opinion, including the EU explosives consultant John Wyatt concluded was impossible) but left handy traces of clothing connected to a shop in Malta, the owners of which provided the most tenuous and hedged identification that could be conceived, and were later paid in millions of dollars by the US government for their assistance. Or perhaps connivance. “That was the most shocking revelation to me,” Peirce says. “Exactly the same forensic scientists who produced the wrongful conviction of Guiseppe Conlon, the Maguire family and of Danny McNamee, and had been stood down for the role they played. Yet here they were. “Without them, there wouldn’t have been a prosecution, far less a conviction in Lockerbie. “If you don’t expose it, it will go on and on. What shocked me most was that I thought that all that had been gone through on Guildford and Birmingham, the one thing that had been achieved was that nobody would be convicted again on bad science. But yet in the Lockerbie case, it isn’t just the same bad science, it is the same bad scientists.” Shame on the Crown to have fooled us once. Shame on us, that we let it happen again, as the saying goes. In another transparent effort at information management, the Crown Office, in its media promulgations, persists in reiterating that Al Megrahi remains convicted of the worst terrorist atrocity to have taken place on British soil, yet ignores the subsequent referral of the case back to court by the Scottish Criminal Cases Review Commission, on the basis that a miscarriage of justice may have occurred. The subsequent manoeuvrings between Westminster, Tripoli, British oil companies and Holyrood have demonstrated that Al Megrahi’s return to Libya, whilst ostensibly a compassionate matter, had far more to do with realpolitik and expediency than anyone concerned is prepared to admit. Peirce has accumulated an extraordinary reputation for upending convictions that resulted in a miscarriage of justice. The real sting in the tale is that the obvious injustice of holding an innocent man in jail has been effectively neutered & replaced with politically convenient ire about his stubborn good health and the manner of his welcome in Libya. However, far from neutralising seekers of the truth in this case, the very evident display of the realities of the geopolitics of convenience has galvanised campaigners, family members and indeed Peirce herself into working to see the ever more flaccid case against Megrahi is overturned. “It sounds that the conviction has reached that point. The SCCRC referred the case to the Court of Appeal, and would not have done that lightly,” she says. “The reference to the court was made because a miscarriage of justice may have taken place. It would not have done that in a million years of it did not have a significant basis to do so. “What is really, really regrettable here is that that opportunity, unless it is put into reverse, is just going to sit there. If the families who lost relatives have been cheated of knowing precisely how, why and who, then that is not good for anything or anyone. Al Megrahi went, and the appeal finished, so there is not that momentum to carry it through in the way there would have been if there were someone wrongly convicted and imprisoned, who had the opportunity to air out all the facts.” The unfolding turmoil in Libya again provided further examples of global realpolitik, as Libya’s emergent leader apparent Abdel Jalil told an enthusiastic world media something they almost universally repeated without any conditionality or qualification; that Colonel Gadaffi was behind the Pan Am 103 atrocity. At the time of publication, neither he nor fellow regime confidante, former intelligence chief Moussa Koussa, have elaborated on those sweeping statements, nor offered the vaguest indication of what sort of evidence or testimony might support such a claim. Scotland’s own Crown Office emerged from a highly choreographed meeting with Koussa and have yet to emit a peep about what was discussed, and are evidently none the richer in terms of useful information. And Koussa left the country not in handcuffs, but aboard an executive jet from an RAF airbase, just as he arrived. If any of this manoeuvring strikes you as suspicious, it may be worth considering the scale and horror of the secret the four governments are taking quite considerable collective effort to avoid revisiting in either a judicial or public forum. “It may be that because of what happened recently in Libya it may be worth looking at everything in the round,” Peirce says. “We need an inquiry into how our government was encouraging all these accommodations and alliances with Libya. What was going on? This is much bigger than Lockerbie. What makes our foreign policy tick? Let’s look at the chronology, let’s look at how, for better or worse, the prosecution of he Lockerbie case might fit into that or not. “Looking at the whole construct, there is going to be a lot of data to be found, that may not be comfortable to find, but we ought to know.” There are further parallels that align this case with Peirce’s experience in miscarriage cases connected with the modern Irish troubles. The notorious Widgery report into the events of “bloody Sunday” shored up a flawed and fictitious version of events that was sustained and reinforced by successive Governments for a generation and beyond. It was only during 2010 that a lengthier, more honest appraisal resulted in a climbdown, admission of deceit and apology, which ultimately brought credit and respect to David Cameron, the political clock having moved on so far. Events surrounding the Pan Am 103 case are still too current and the deceit still too recent for such a reversal to bring credit upon anyone. Earlier this year for example, the Justice for Megrahi campaign, including noted academic Professor Robert Black QC concluded that then Lord Advocate Elish Angiolini had given flawed legal advice to the Scottish Government. It is hardly surprising that none in the Scottish civil service establishment are rushing to participate in exposure of their own culpability. However the Chilcott Inquiry, following the drip feed of revelations about the illegality of the Iraq invasion is precedent for the possibility that effort can be made to secure the truth in a shorter timeframe. “The recent history in Westminster; all of the advice about the Iraq war, the advice about what constitutes torture, what is complicity in torture, advice about Geneva conventions, Guantanamo detentions - it has all served political expediency and has all been bad. Bad legally bad morally, bad factually," she says. “We have lost our way, and to some extent deliberately gone the wrong way. There comes a time when you should stop and say ‘This is all wrong and we have to put it right’. The Lockerbie case is screaming out for that. Perhaps the point comes when the embarrassment is greater to do nothing than it is to do something.” The matter has recently been before the United Nations, and given the lack of resolution in the Megrahi appeal, the European Union may still have an interest and role to play. The UN observer Hans Kochler, who said the manipulated conduct of the trial itself amounted to a criminal offence, could still have a locus to move for an EU level inquiry. “It is an attractive thought, but I am not sure that wouldn’t lead to further evasion of responsibility,“ Peirce says. “The will to actually achieve it would be even more blunted from outside. Because of the clear, disastrous mess the Libyan connection has been, it demands self analysis. If there were at both [Scottish and English]ends sufficient initiative to say at least let us set up the beginnings of a joint inquiry, in the hands of one completely trusted, completely neutral external examiner, just to look at the nuts and bolts that are there to see, to see if a full scale inquiry should be recommended; if there should, then both countries should able to do that. “I am quite sure that if anyone had the will to say that Lockerbie and the relationship with Gadaffi has been spectacularly disastrous, perhaps the most disastrous relationship that the UK has had with anyone, for a very, very, very long time, and within its recent history we can see so much has gone awry that has distorted our foreign policy, domestic policy and our judicial integrity, then that is too much and we want to learn something from it, so that it doesn’t repeat itself.” In the period since the Megrahi conviction was referred back to the High Court, not only have the campaigners - galvanised behind the spearhead of Dr Jim Swire, but comprising many others from across the world - persistently sustained their efforts, but a second generation of the children of those affected by the case have publicly engaged with the efforts to expose the realities of this case, including Al Megrahi’s daughter, Aisha, in whose name her father’s case could theoretically proceed in the event of his death.“If any case is ever reopened, it is usually down to the absolute dogged stamina of one or two people who wont take no for an answer,” Peirce says. “And there are people in this case who won’t let go of it, and interestingly, they are the people who are the most well informed, who went through the whole trial at Kamp Zeist and know the detail. They formed their views on data and information, not second hand knowledge. If anything achieves the reopening, it will be that. “In the past it hasn‘t needed any more people than that to lever an opening into something that seemed shut tight forever. All of this is screaming out for an inquiry. The ingredients that make up the prosecution’s case are really so rotten. They can’t and they shouldn’t sustain the weight of a presumed safe finding. You can see that they are utterly contaminated. They have no integrity. “The forensic findings lack all the ingredients that should make them safe. The continuity of exhibits is all over the place. The only other pillar on which it is held up is this non-identification. It is just a catastrophe. The whole edifice is rotten, and it is astonishing it was ever stood up in the first place.” Peirce has pledged to continue to assist the families of the bereaved affected by the Pan Am 103 event and its Orwellian aftermath. Ever modest of her own contribution, not only to this case but the others to which she is associated, it is her own humility that is the overriding emotion that she attaches to her interest in this long lasting stain of shame on the nation. “I see a terrifying reproduction of other really awful circumstances. It is a pretty exact repetition of injustices that have gone before. I suppose because I can see that, I can see the way the replication is exact down to the same detail, it is my responsibility to at least explain that much,“ she says. “If the families can use that perspective, then of course that is there for them. I perhaps feel ashamed that I have not done more. I feel very, very badly that I have not contributed more, and want to contribute more from any perspective I have that is constructive and useful.” And it is her belief, shared by the UK families affected by these events, that it better to know the awful truth, than a palatable falsehood. “Even in the most terrible cases, there is often always the reaction that you shouldn’t be storing up this terrible thing for the victims or families of those who lost relatives. That happened with the Guildford bombs. However, when the truth finally came out, there wasn’t an outcry from the families at all to say that they would have preferred the miscarriage hadn’t been uncovered.” Almost twenty three years have passed since the event that charred Lockerbie, with each of them marked by ongoing deceit and sustained resistance from those whose reputations are at risk of foundering once their actions and inactions are exposed. Some have already sought refuge in secure retirement, whilst others have risen to positions of considerable power in the Crown, civil service and Government establishments. Ever steadily, the weight of damaging information increases. The edifice of the conviction secured by malfeasance has long since crumbled, although its remains are still clung on to with desperation by an ever diminishing few. The official vacuum left by the present interregnum cannot be sustained whilst Peirce and others work to get closer to the truth. History has taught us that the day of truth is coming.