Pan Am Flight 103 bombing trial


The Pan Am Flight 103 bombing trial began on 3 May 2000, more than 11 years after the destruction of Pan Am Flight 103 on 21 December 1988. The 36-week bench trial took place at a specially convened Scottish Court in the Netherlands set up under Scots law and held at a disused United States Air Force base called Camp Zeist near Utrecht.

Trial set-up

Venue

Upon the indictment of the two Libyan suspects in November 1991, the Libyan government was called upon to extradite them for trial in either the United Kingdom or the United States. Since no bilateral extradition treaty was in force between Libya and either of the two countries seeking extradition, 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 1997 Commonwealth Heads of Government Meeting 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 the University of Edinburgh and, in accordance with the Labour government's promotion of an "ethical" foreign policy, was given political impetus by the then foreign secretary, Robin Cook. The Scottish Court in the Netherlands, a special High Court of Justiciary, was set up under Scots law in a disused United States Air Force base called Camp Zeist in Utrecht, in the Netherlands. Facilities for a high security prison were also installed there. Under a bilateral treaty between the United Kingdom and the Netherlands, these premises were, for the duration of the trial and any subsequent appeal, under the authority and control of the Scottish Court. Dutch law still theoretically applied to the area, but, barring an emergency, the Dutch authorities were banned from entering the premises and the Court had the authority to enact regulations that superseded Dutch law when necessary for the execution of the trial, and to jail people for contempt of court. The court itself, as well as people involved in the trial also enjoyed total or partial immunity from Dutch law.

Accused

Two Libyans, Abdelbaset al-Megrahi and Lamin Khalifah Fhimah, were accused of the crime. In the run-up to the trial, the prosecution considered bringing charges against Swiss businessman, Edwin Bollier, of the electronics firm that made the timer for the bomb Mebo AG, but decided that, unless evidence to incriminate Bollier were to be introduced 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 5 April 1999, over a year ahead of the start of the trial, Megrahi and Fhimah arrived in the Netherlands.

Charges

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

Judges

The Scottish High Court of Justiciary at Camp Zeist, Netherlands was presided over by three senior judges, known as Lords Commissioners of Justiciary and an additional judge :
with:
Five different Lord Advocates were in post 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. Lord Boyd led the prosecution on behalf of the Crown Office. Assisting him were Advocate Deputes Alastair Campbell QC and Alan Turnbull QC. 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 23 October 2005, Lord Fraser allegedly cast doubt upon the reliability of the main prosecution witness, Tony Gauci.

Defence

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

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 7 December 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 should face charges of conspiracy as well as murder;
  • they could be described as members of their country's intelligence services; and,
  • the start of the full trial was delayed by three months.

    Case

The case against the two defendants rested primarily on three points:
  • that the bomb timer used was from a batch sold by a Swiss firm, Mebo AG to Libya;
  • a former colleague in the Libyan Airlines office in Malta, Abdulmajid Gialka, who was due to testify that he had seen the construction of the bomb, or at least its loading onto the plane at Frankfurt;
  • that the clothes identified as having been in the bomb suitcase had been bought by the defendant Megrahi at a shop in Malta.
Each of these points was contested by the defence.
  • Edwin Bollier, the co-founder of the Swiss manufacturer of the timer, testified that he had sold similar timers to East Germany, and admitted having connections to a number of intelligence agencies, including both the Libyans and the CIA.
  • Gialka, by the time of the trial was living under the Witness Protection Program in the US, had connections with the CIA prior to 1988, and stood to collect up to $4m in reward money following a conviction.
  • Tony Gauci, the Maltese shopkeeper, failed to positively identify Megrahi in nineteen separate pre-trial statements to the police. In court, Gauci was asked five times if he recognised anyone in the courtroom, without replying. Only when the prosecutor pointed to Megrahi did Gauci say that "he resembles him". On a previous occasion Gauci had identified Abu Talb saying that Talb resembled the customer "a lot". Gauci's police statements identified the customer as over 6 feet tall and over 50 years of age; Megrahi is 5 feet 8 inches, and in late 1988 was 36.
  • The clothes purchase took place on either 23 November or 7 December 1988; Megrahi was only in Malta on 7 December. Gauci recalled the customer also buying an umbrella due to the rain. The defence argued, using meteorological records, that it rained all day on 23 November, but only briefly or not at all on 7 December.
In its closing arguments, the prosecution stressed that Megrahi could not have planted the bomb without the assistance of Fhimah – both defendants were equally guilty, and should stand or fall together.

Proceedings (May 2000 – January 2001)

Court proceedings started on 3 May 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 ;
  • 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 " 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 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 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 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, said it was "the best I can do in such a short time."
Later in week 7, the co-founder of Mebo AG, Erwin Meister, testified that Mebo had supplied Libya with 20 MST-13 timing devices, and identified one of the two accused as a former business contact. The defence asked Meister, under cross-examination, to explain the purpose of his visit to Syria in 1984.
Meister's partner, Edwin Bollier, was questioned in week 8. Bollier said Mebo made a range of products including briefcases equipped to radio-detonate IEDs. He agreed that Mebo had sold 20 MST-13 timers to Libya in 1985 which were later tested by Libyan special forces at their base at Sabha. Bollier said: "I was present when two such timers were included in bomb cylinders". In court, Bollier was shown a number of printed circuit board fragments which he identified as coming from the Mebo MST-13 timer, but he claimed that these timer fragments appeared to have been modified.
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.
Former Mebo employee, Ulrich Lumpert, confirmed that as an electronics engineer he had produced all of the firm's MST-13 timers. Lumpert agreed that the fragments shown to him in court "could be" from that timer and was asked to confirm his signature on a letter concerning a technical fault with the prototype MST-13 timer. The trial was then adjourned until 12 July 2000.
On 18 July 2007 Lumpert admitted he had lied at the trial. In an affidavit before a Zürich notary, Lumpert stated that he had stolen a prototype MST-13 timer PC-board from Mebo and gave it without permission on 22 June 1989, to "an official person investigating the Lockerbie case". Dr Hans Köchler, UN observer at the Lockerbie trial, who was sent a copy of Lumpert's affidavit, said: "The Scottish authorities are now obliged to investigate this situation. Not only has Mr Lumpert admitted to stealing a sample of the timer, but to the fact he gave it to an official and then lied in court".
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'. 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 21 December 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 30,000 ft. 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 22 August 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:
But Lord Sutherland told Salinger:
Abu Talb gave evidence in week 25 and testified that he had been babysitting at home in Sweden when PA 103 was sabotaged on 21 December 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 31 January 2001 in week 36.