How the SCCRC (and three Defence Teams!) overlooked a vital discrepancy between "Page 51" and "photograph 117"
"The SCCRC found nothing to undermine the Trial Court's conclusions about the timer fragment"
(Crown Office statement in response to the Sunday Herald's publication of the Statement of Reasons).
(n.b. This article was originally posted in June 2013 having been written without access to material contained within the appendices of the SCCRC report. It has been substantially revised in October/November 2013 with access to the statement of Forensic Document Examiner, the Photographic Index of the RARDE report together and the Police photographic log books and reposted 8/11/13.
Introduction
This paper reviews chapters 7, 8 & 9 of the Scottish Criminal Case Review Commission's Statement of Reasons in the Lockerbie case. ( http://login.heraldscotland.com/SCCRC-Statement-of-reasons-red.pdf ) These chapters concern allegations that the key exhibit in the case, a fragment of circuit board known as PT/35(b) identified as a fragment of MEBO timer was fabricated and falsely introduced into evidence. This concerns three related issues. Firstly "page 51" of Dr Hayes' notes, the allegation being that these notes were not made as claimed on the 12th May 1989. Secondly the authenticity of the first photograph of the fragment PT/35(b) taken on the 22nd May 1989 known as "photograph 117". The third issue concerns "The "Horton Manual" (exhibit PK/689) dealt with at Chapter 9 of the SCCRC's Statement of Reasons.
2. Contrary to the above Crown Office statement the SCCRC actually found a great deal to undermine the Trial Court's conclusions, in particular through the work of the Forensic Document Examiner Mr McCrae whom the SCCRC themselves commissioned. However the Statement of Reasons presented the Forensic Document Examiner's findings in a less than objective manner in respect of "page 51" and key findings were ignored in order to pretend that nothing amiss was found. However the SCCRC paid little heed to what is actually depicted on "page 51" and failed to notice (as nobody else had either) what is quite beyond doubt :- that the contents of "page 51" dated 12th May 1989, in respect of exhibit PT/2 could not legitimately have been written before photograph 117 was taken, ten days later on the 22nd May 1989.
3. Further in relation to the examination of the "Horton Manual" the Forensic Document Examiner found other serious anomalies with page 61 of Dr Hayes' notes which although highlighted by the SCCRC, no credible explanation was offered. This cast further doubt on the legitimacy of the photograph featured in the Statement of Reasons described as "The Horton Manual". This was not the original police photograph of the 12th May 1989 which does not feature in the RARDE photographic index but one of very dubious provenance. For considerations of confidentiality (real or supposed) the Statement of Reasons was kept out of the public domain for several years until published by the Sunday Herald. The relevant appendices remain outside the public domain. However it is only with access to copies of the Police photographic logs can it be seen that photograph 117 was taken on the 22nd May 1989, and not "at the latest" as claimed in the Statement of Reasons.
3. Further in relation to the examination of the "Horton Manual" the Forensic Document Examiner found other serious anomalies with page 61 of Dr Hayes' notes which although highlighted by the SCCRC, no credible explanation was offered. This cast further doubt on the legitimacy of the photograph featured in the Statement of Reasons described as "The Horton Manual". This was not the original police photograph of the 12th May 1989 which does not feature in the RARDE photographic index but one of very dubious provenance. For considerations of confidentiality (real or supposed) the Statement of Reasons was kept out of the public domain for several years until published by the Sunday Herald. The relevant appendices remain outside the public domain. However it is only with access to copies of the Police photographic logs can it be seen that photograph 117 was taken on the 22nd May 1989, and not "at the latest" as claimed in the Statement of Reasons.
4. While Lockerbie campaigners have focused on the limited grounds for Appeal that the SCCRC supported (that might exonerate Megrahi but not "Libya") curiously those with access to the Statement of Reasons apparently saw nothing wrong with the SCCRC arriving at conclusions that were clearly contradicted by evidence they had themselves commissioned. The Lord Advocate Frank Mulholland has also claimed that a leading (unidentified) Silk had been commissioned to review the Statement of Reasons and found nothing amiss. If this is true, (that a leading Silk was engaged) then he was manifestly incompetent. While the Commission's treatment of the findings of the Forensic Document Examiner, appear, to say the least odd, it is only with access to material outwith the report itself, can these serious failings in the Statement of Reasons be identified.
5. (As the Commission's Statement of Reasons will be extensively quoted, besides a reference to the paragraph number in the text extracts from the report will be italicised and highlighted.)
The Photographic Evidence - the Crucial Photograph 117
6. The SCCRC dealt firstly with the second submission of Megrahi's Solicitor Eddie McKechnie (who had successfully defended Megrahi's co-defendant Lhamin Fhimah at Camp Zeist.) This submission concerned the alleged incompatability of two photographs - photograph 116 which depicts four parts or segments of the Slalom shirt (which Dr Hayes confirmed in evidence at Camp Zeist shows the fragment PI/995 prior to dissection) (para.7.7) and photograph 117 depicting one of these four segments PI/995 and the items extracted from it - PT/35(a) - (d).
7. Photographs 116 (FC4374) & 117 (FC3521) are listed in the RARDE report Photographic Index against their unique reference number. "FC" refers to Log Book 1 Colour. (A reference prefixed "F" would be found in photographic Log Book 2 in black & white.) The numbers, for example Photograph 116, Photograph 117, and Photograph 435 are photos of particular significance selected for the RARDE photographic report and are not in chronological order.
7. Photographs 116 (FC4374) & 117 (FC3521) are listed in the RARDE report Photographic Index against their unique reference number. "FC" refers to Log Book 1 Colour. (A reference prefixed "F" would be found in photographic Log Book 2 in black & white.) The numbers, for example Photograph 116, Photograph 117, and Photograph 435 are photos of particular significance selected for the RARDE photographic report and are not in chronological order.
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Photographs 116 & 435 (of no real significance) |
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"Photograph 117" ( FC3521) Officially Taken 22/5/89 (The Key Item is PT/2, the tiny clump of paper above the start of the ruler)
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8. Mr MacKechnie's submission was that as photograph 116 showed the fragment of Slalom cloth PI/995 prior to dissection (according to Dr Hayes' evidence at Camp Zeist) and as photograph 117 showed the fragment supposedly in May 1989 post-dissection, if photograph 116 was taken much later then photograph 117 could not have been taken in May 1989. (The Commission indeed conceded that photograph 116 could not have been taken before 12th May 1989.) (para.7.6 - 7.8). However these grainy photographs of photograph 116 are of little interest and Dr Hayes may well have been mistaken. The photograph that matters is photograph 117 (above). In making his submission Mr McKechnie focused on what was actually a peripheral or trivial issue that could be easily explained away and was. What cannot be explained away is the contradiction between "photograph 117" and "page 51".
9. The Commission describe how the negatives are stored, not in their original roll of film but that the roll is cut into individual negatives and each negative is placed in a date stamped sheath.
10. Para.7.20 of The Statement of Reasons concerning photograph 117 reads - "Similarly, by cross-referring the negative number on the original print of photograph 117 (FC3521) with the corresponding entry in photograph log book 1, it appears that the photograph was taken before, or at the very latest on 22nd May 1989, which again is reflected in the date stamped on the sheath containing the negative. Photograph 117 clearly depicts PI/995 following dissection, and if taken shortly before 22 May 1989, would be consistent with page 51 of Dr Hayes' examination notes, which indicates that his examination of PI/995 took place on 12th May 1989.
11. While the Statement of Reasons implies the date given in the photographic register is some vague date, perhaps when a roll of film was developed, "before, or at the very latest" there is no evidence that this date is anything but the date the photograph is taken. For example F7384 (the first photograph of the "Horton Manual") is dated in the photographic log 12th May 1989 and this indeed was the day this exhibit was received at RARDE. How can the date in the photographic log be anything but the date on which the photograph was taken? Perhaps the SCCRC had noticed the discrepancy between the two and were trying to fudge the issue.
13. Apparently there is, (or was) nothing to prevent the original negative of FC3521 being switched for another negative taken much later. (Indeed the SCCRC appear to have been working from the RARDE Report photographic index without examining the actual negative.) The record in the photographic log book would be unchanged. All the Police photographic log book states to describe this incredibly significant photograph is "PP8932 - Lockerbie". Indeed there is never a reference to a particular exhibit number or any detailed description of what is being photographed in the photographic log books. ) However if the photograph is genuine then page 51 of Dr Hayes notes, dated the 12th May 1989 could not legitimately have been created before the photograph was taken.
11. While the Statement of Reasons implies the date given in the photographic register is some vague date, perhaps when a roll of film was developed, "before, or at the very latest" there is no evidence that this date is anything but the date the photograph is taken. For example F7384 (the first photograph of the "Horton Manual") is dated in the photographic log 12th May 1989 and this indeed was the day this exhibit was received at RARDE. How can the date in the photographic log be anything but the date on which the photograph was taken? Perhaps the SCCRC had noticed the discrepancy between the two and were trying to fudge the issue.
13. Apparently there is, (or was) nothing to prevent the original negative of FC3521 being switched for another negative taken much later. (Indeed the SCCRC appear to have been working from the RARDE Report photographic index without examining the actual negative.) The record in the photographic log book would be unchanged. All the Police photographic log book states to describe this incredibly significant photograph is "PP8932 - Lockerbie". Indeed there is never a reference to a particular exhibit number or any detailed description of what is being photographed in the photographic log books. ) However if the photograph is genuine then page 51 of Dr Hayes notes, dated the 12th May 1989 could not legitimately have been created before the photograph was taken.
14. Para.7.31 of the Statement of Reasons concludes "In light of these enquiries, the Commission does not believe that the submissions concerning the photographs of PI/995 cast doubt on the evidence that this item was dissected on 12th May 1989, as recorded in Dr Hayes' notes."
An "Unfathomable Mystery"
15. Mr MacKechnie's first submission (dealt with 2nd by the SCCRC) had concerned "page 51" of Dr Hayes notes which records the extraction of PT/35 (a)-(d)) from PI/995 on the 12th May 1989.
16. It had long been known that page 51-55 of Dr Hayes' notes had been renumbered as pages 52-56. Para.7.59 "At trial Dr Hayes was cross examined about changes made to the numbering of the pages of his notes which, it was suggested, demonstrated that page 51 had been inserted at a later date. Reference is also made in the submissions to Dr Hayes' failure to follow his normal procedures in that he did not draw the fragment of circuit board - the submission suggests that the provenance of PI/995 is far from proved, and that further investigation is required of the forensic notes, particularly given Dr Hayes' description of the changes to the page numbers as an unfathomable mystery."
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16. It had long been known that page 51-55 of Dr Hayes' notes had been renumbered as pages 52-56. Para.7.59 "At trial Dr Hayes was cross examined about changes made to the numbering of the pages of his notes which, it was suggested, demonstrated that page 51 had been inserted at a later date. Reference is also made in the submissions to Dr Hayes' failure to follow his normal procedures in that he did not draw the fragment of circuit board - the submission suggests that the provenance of PI/995 is far from proved, and that further investigation is required of the forensic notes, particularly given Dr Hayes' description of the changes to the page numbers as an unfathomable mystery."
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17. Clearly dated the 12th May 1989 page 51 records the discovery of exhibits PT/35(a)-(d) from a plastic bag marked "debris charred" which is described as a piece of grey shirt - (the word Slalom does not appear on page 51.) These exhibits are (a) "several fragments of black plastic", (b) "a fragment of a green coloured circuit board", (c) "small fragments of metal and wire" and (d) a "multilayered fragment of white paper bearing writing in various languages." Para.7.96 records “Mr Feraday recalled being invited in to see the pieces embedded in PI/995 before Dr Hayes removed them. In particular he recalled the extraction of PT/2 and PT/35(b).”
18. The five sheets of this multi-layered fragment of white paper are sketched (both sides) although the writing in the sketches is largely illegible. Below the sketch of sheet 2 appear the words "Fragments of paper separated and named as PT/2" above the words " "FIVE DAMAGED FRAGMENTS OF WHITE PAPER FROM PI995" ". In the left margin PT/2 is circled. By sheet one appears the words "page 3 & 4" by sheet 2 "page 5 & 6" by sheet 3 "page 7 & 8" by sheet 4 "page 9 & 10" and by sheet 5 "page 11 & 12".
19. The fragment of circuit board is not sketched. The Trial Judges and the SCCRC saw nothing wrong with this as the fragment was photographed. (Allegedly ten days later!) Para.7.96 of the Statement of Reasons reads “As regards Dr Hayes’ alleged failure to draw PT/35(b) in his examination note, this point loses any possible sinister connotation if one accepts (as the Commission does) that the photographic log accurately record photograph 117 of the RARDE report as having been taken on or before 22 May 1989. The fragment of circuit board is clearly depicted in that photograph”. (Indeed it is). But why then would Dr Hayes sketch five small fragments of paper (both sides) on page 51 when some of the writing is Spanish, Arabic and Chinese characters? (These five fragments were not photographed until the 19th June 1989.)
19. The fragment of circuit board is not sketched. The Trial Judges and the SCCRC saw nothing wrong with this as the fragment was photographed. (Allegedly ten days later!) Para.7.96 of the Statement of Reasons reads “As regards Dr Hayes’ alleged failure to draw PT/35(b) in his examination note, this point loses any possible sinister connotation if one accepts (as the Commission does) that the photographic log accurately record photograph 117 of the RARDE report as having been taken on or before 22 May 1989. The fragment of circuit board is clearly depicted in that photograph”. (Indeed it is). But why then would Dr Hayes sketch five small fragments of paper (both sides) on page 51 when some of the writing is Spanish, Arabic and Chinese characters? (These five fragments were not photographed until the 19th June 1989.)
The Forensic Document Examiner's Findings:
"I have the greatest respect for the Commission"
Lord Advocate Frank Mulholland
"I have the greatest respect for the Commission"
Lord Advocate Frank Mulholland
20. The Commission had obtained Dr Hayes' file of notes. (Crown Production 1497). Do these notes relate exclusively to the Lockerbie investigation? They do not say. The SCCRC commissioned Mr William McCrae a Forensic Document Examiner to conduct ESDA tests on the disputed page 51 "and the surrounding pages." However it transpires, at least as represented in the Commission's Statement of Reasons, that the phrase "surrounding pages" was misleading as crucial evidence of the pages preceding page 51 is omitted. (In fact Mr McCrae's statement was remarkably brief, just three pages, and says little concerning this key issue.)
21. According to the SCCRC Statement of Reasons Mr McCrae found that the most of the detail of the writing on page 52 (originally numbered page 51) was imprinted onto page 53, (formerly 52) most of the detail on 53 (52) on page 54 (53) ect. up to page 59. "The inference to be drawn from these findings is that, for these pages, the entries have been made on the same pad of paper and have been completed in the sequence in which they appear in Dr Hayes file."
22. Mr McCrae found that most of the imprint from page 50 (dated 12th May 1989) appeared on page 51. No indentation from page 50 was found on page 52 and "the Commission considers this to be a strong indication that page 51 was not inserted into Dr Hayes notes at a later date, but rather was completed in sequence after page 50." - "No indentions from the entries on page 50 were found in the trace of page 52 (which might have supported the contention made in cross examination that page 52 had originally been page 51, and had now been renumbered as 52 to create space for a new page 51.)" (para.7.88). This is a curious, perhaps even a stupid argument as the indentations on page 52 (which was previously 51) are from another document altogether, one that is not in Dr Hayes' file!) Further while no indention from page 50 appeared on page 52 an indentation from page 52 appeared on page 50!
23. At page 7.89 the Commission prematurely concluded "In the Commission's view, these findings greatly assist in rejecting any sinister inference sought to be drawn from the changes made to the page numbers of Dr Hayes notes."
24. However in the following paragraph the Commission summarises what appears to be a serious and fundamental irregularity, clear forensic evidence that page 51 was written out of sequence. "Given the pattern of indentations on the other pages of the notes one might have expected that the trace of page 52 would contain details from the entry on page 51." (Indeed one would and perhaps this is what the SCCRC expected to find when they commissioned a Forensic Document Examiner) "In fact it does not: the indentation recovered from page 52 appear to relate to a matter unconnected to the Lockerbie enquiry. Specifically the trace of page 52 revealed what appeared to be a number "PP8922" and part of a date "17/ /89." A trace of the words "...bag --- with label marked..." was also found." (The Lockerbie case reference was the similar PP8932).
25. The Commission discovered that case PP8922 was an unrelated case dealt with by Dr Hayes "in the period March to May 1989." What the Commission must have discovered but did not mention is that from the 15th (or possibly 17th March) until the day page 51 was supposedly written (the 12th May 1989), Dr Hayes does not appear to have written any notes at all!
26. In an attempt to explain away this remarkable anomaly Para.7.92 states "A possible explanation for the indentation on page 52 is that, between finishing the examination recorded on page 51 on 12th May and commencing the examination on page 52 on 15th May 1989, Dr Hayes used the same pad of paper to record examinations he carried out relating to PP8922." (The Statement of Reasons omits to mention that the 13th & 14th May were a Saturday and Sunday). "This would not, however, be consistent with the contents of a memo recorded on the HOLMES system dated 5th April 1989 (D4008 see appendix) which indicates that as of that date Dr Hayes was to work exclusively on the Lockerbie enquiry."
27. When questioned about this Dr Hayes helpfully "accepted that he might have worked on the case numbered PP8922 between his examinations on the 12th May and 15th May 1989 although he was unable to offer any explanation regarding the partial date found in the trace of page 52 of his notes." (Of course that does not mean that he did in fact work on case PP8922 between his examinations of the 12th May 1989 and the 15th May 1989 and indeed there is great doubt that he made any examination on the 12th May 1989). "In any event the Commission does not consider the indentations found on page 52 relating to case PP8922 undermine its conclusion as to the validity of page 51 of Dr Hayes' notes." (para.7.93). As these indentations on page 52 obviously do undermine the validity of page 51 are the words "in any event" to be taken quite literally?
28. What is the month missing from the date "17/ /89"? It cannot have been the 17th May as page 52 is dated 15th May 1989. Further beyond the fact Dr Hayes does not appear to have written any notes at all in April 1989 the 17th April 1989 was a Sunday. The 17th March 1989 would seem to be a possible date when this missing note was written as the first note on page 49 is dated (Wednesday) the 15th March 1989. (Page 49 concludes with a note dated two months later on Monday 15th May 1989.) If this missing page was written on the 17th March 1989 then it would comply with the HOLMES memo of the 5th April 1989.
29. Was this page originally in Dr Hayes file of notes or was it in the file of another investigation? When interviewed Dr Hayes suggested that the sheet might be recovered from another file which would of course solve the mystery of when it was written. The SCCRC apparently did not pursue this. Would it have completely undermined their claims?
30. The SCCRC find page 51 to be genuine because it bears the imprint of page 50 also supposedly written on the 12th May 1989. However if page 51 bears a false date (and it could not legitimately have been written before the 22nd May 1989) it would follow that page 50 also bears a false date. Was the new page 51 created in anticipation of an ESDA test conducted 15 years later?
31. The photographic log books make a few reference to Dr Hayes in this period as "originator" of some photographs although this may not prove he was physically at Fort Halstead. In photographic Log book 2 Dr Hayes was noted as the originator of a request dated the 28/3/89 for some further prints ordered in relation to case PP8932 (Lockerbie) and on the 5/4/89 further prints of clothing and suitcases in relation to the Lockerbie case. Dr Hayes is noted the originator for three further jobs in the Job Register up to the 12/5/89.
32. If Dr Hayes had been on some sort of extended leave (prior to his retirement in August 1989 to take up a career in chiropody) it seems unlikely he would return to work on a Friday (and then almost immediately make the two most significant discoveries of the entire forensic examination.)
29. Was this page originally in Dr Hayes file of notes or was it in the file of another investigation? When interviewed Dr Hayes suggested that the sheet might be recovered from another file which would of course solve the mystery of when it was written. The SCCRC apparently did not pursue this. Would it have completely undermined their claims?
30. The SCCRC find page 51 to be genuine because it bears the imprint of page 50 also supposedly written on the 12th May 1989. However if page 51 bears a false date (and it could not legitimately have been written before the 22nd May 1989) it would follow that page 50 also bears a false date. Was the new page 51 created in anticipation of an ESDA test conducted 15 years later?
31. The photographic log books make a few reference to Dr Hayes in this period as "originator" of some photographs although this may not prove he was physically at Fort Halstead. In photographic Log book 2 Dr Hayes was noted as the originator of a request dated the 28/3/89 for some further prints ordered in relation to case PP8932 (Lockerbie) and on the 5/4/89 further prints of clothing and suitcases in relation to the Lockerbie case. Dr Hayes is noted the originator for three further jobs in the Job Register up to the 12/5/89.
32. If Dr Hayes had been on some sort of extended leave (prior to his retirement in August 1989 to take up a career in chiropody) it seems unlikely he would return to work on a Friday (and then almost immediately make the two most significant discoveries of the entire forensic examination.)
33. (It was also suggested by the defence that material on the original page 56 of the notes had been moved to the bottom of page 49. In the light of the Forensic Document Examiner's note this suggestion appears to be unfounded. However the inclusion of a note dated the 15th May 1989 at the bottom of a note dated 15th March 1989 raises far more questions which the Commission does not address as there is no mention whatsoever of the crucial page 49 by the commission.)
34. As should have been blindingly obvious to the SCCRC the key question is whether the indentation of page 49 appears on page 50 (either wholly or in the part, page 49 bearing two sections dated months apart). While the Commission had commissioned an examination of page 51 and "the surrounding pages" page 49 is not mentioned at all in their summary of the Forensic Document Examiner's report!
Statement of the Forensic Document Examiner:
35. Mr McCrae's remarkably brief statement does not say that the impression of page 49 appears on page 50. In relation to page 49 he wrote "Recovered detail suggests that several pieces of paper were written on while on top of this page. Due to lightness of pressure, impressions of pencil drawings on the page 49 are visible". In relation to page 50 he wrote, somewhat confusingly, "number '51' the impression of the original number of page 52 is visible. Impression of pencil drawing of page 50 is visible. Other impressions of common terms used in these notes are visible but the origin is not known." (Why "due to lightness of pressure"? Heavy pressure surely?)
36. Why the imprint of the number 51 (from the original or "second" page 51, now 52, would appear on page 50 (when the impression of page 50 appears on the "new" 51) is also difficult to explain. However the key question is whether the whole or which constituent part of page 49 appears on page 50. Mr McCrae doesn't say beyond stating that "other impressions of common terms used in these notes are visible but the origin is not known."
35. Mr McCrae's remarkably brief statement does not say that the impression of page 49 appears on page 50. In relation to page 49 he wrote "Recovered detail suggests that several pieces of paper were written on while on top of this page. Due to lightness of pressure, impressions of pencil drawings on the page 49 are visible". In relation to page 50 he wrote, somewhat confusingly, "number '51' the impression of the original number of page 52 is visible. Impression of pencil drawing of page 50 is visible. Other impressions of common terms used in these notes are visible but the origin is not known." (Why "due to lightness of pressure"? Heavy pressure surely?)
36. Why the imprint of the number 51 (from the original or "second" page 51, now 52, would appear on page 50 (when the impression of page 50 appears on the "new" 51) is also difficult to explain. However the key question is whether the whole or which constituent part of page 49 appears on page 50. Mr McCrae doesn't say beyond stating that "other impressions of common terms used in these notes are visible but the origin is not known."
37. Mr McCrae's evidence appears to be that the imprint of page 50 was found on the disputed page 51 but that the imprint of this page was not found on page 52 but that the imprint of another (missing) page was. No imprint of page 49 was not found on page 50.
38. Dr Hayes evidence at Camp Zeist was that he had renumbered page 51-55 as 52-56 because he had mistakenly numbered two pages as 51. But if the new page 51 is a later insertion why not simply remove a page of notes and insert the new page 51? (That this was possible, even easy, is an indictment of the evidential value of these notes.) Could it be because not one but two new pages were inserted, the new page 51 and page 50 (whose imprint appears on page 51). If page 51 bears a false date then so too does page 50.
39. It is possible that page 51 depicting the dissected exhibit PT/2 was written on the 12th May 1989 but that would mean that the un-dissected exhibit PT/2 that appears in photograph 117 is simply a prop created for the purpose of the photograph. This would of course imply that PT/2 was not in reality discovered in the neckband of a grey shirt but was created from a generic Toshiba bombeat instruction manual. (The idea that PT/2 was actually blasted into the shirt within the primary suitcase by the explosion seems pretty absurd.) Perhaps page 51 originally referred only to the items PT/35(a)-(c) only being recovered on the 12th May 1989 and item (d) and the sketches were added later. Who knows?
40. But if photograph 117 was taken on the 22nd May 1989 why would the note of its supposed discovery need to be backdated and why would Dr Hayes purport to have dissected PT/2 immediately and identified it immediately as part of a specific Toshiba manual? Why should the contents of page 51 not appear on a note dated the 22nd May 1989 so that there is no discrepancy with photograph 117? The explanation for that may lie in an intimately related exhibit PK/689 known as "The Horton Manual."
Exhibit PK/689 "The Horton Manual"
38. Dr Hayes evidence at Camp Zeist was that he had renumbered page 51-55 as 52-56 because he had mistakenly numbered two pages as 51. But if the new page 51 is a later insertion why not simply remove a page of notes and insert the new page 51? (That this was possible, even easy, is an indictment of the evidential value of these notes.) Could it be because not one but two new pages were inserted, the new page 51 and page 50 (whose imprint appears on page 51). If page 51 bears a false date then so too does page 50.
39. It is possible that page 51 depicting the dissected exhibit PT/2 was written on the 12th May 1989 but that would mean that the un-dissected exhibit PT/2 that appears in photograph 117 is simply a prop created for the purpose of the photograph. This would of course imply that PT/2 was not in reality discovered in the neckband of a grey shirt but was created from a generic Toshiba bombeat instruction manual. (The idea that PT/2 was actually blasted into the shirt within the primary suitcase by the explosion seems pretty absurd.) Perhaps page 51 originally referred only to the items PT/35(a)-(c) only being recovered on the 12th May 1989 and item (d) and the sketches were added later. Who knows?
40. But if photograph 117 was taken on the 22nd May 1989 why would the note of its supposed discovery need to be backdated and why would Dr Hayes purport to have dissected PT/2 immediately and identified it immediately as part of a specific Toshiba manual? Why should the contents of page 51 not appear on a note dated the 22nd May 1989 so that there is no discrepancy with photograph 117? The explanation for that may lie in an intimately related exhibit PK/689 known as "The Horton Manual."
Exhibit PK/689 "The Horton Manual"
41. One of the most controversial (and incredible) exhibits was PK/689 a piece or section of Toshiba manual. This was allegedly discovered by a Northumberland family the Hortons along with a number of other exhibits on the morning of the 23rd December 1989, some sixty hours after the bombing and almost 100 miles from Tundergarth. This was handed over to their local Police Station. It then seems to have been passed to the Dexstar Warehouse at Dumfries where it appears, despite its astonishing significance, to have remained, unrecognised for what it was, despite the Police's efforts to link the atrocity to the activities of the "Autumn Leaves" group.
42. The SCCRC examine this issue in light of Mr Megrahi's Solicitor Eddie McKechnie's submission or allegation that the item found by the Hortons may have been an intact manual and that this exhibit was somehow manipulated and changed to support the Police's theory that the PFLP-GC "Autumn Leaves" gang were responsible for the bombing. As it is prima facie evidence that the IED was built by Marwan Khreesat (and does not in itself incriminate Mr Megrahi at all until it is linked through PT/2 to the fragment of Slalom shirt) it is puzzling that Mr McKechnie would challenge the authenticity of this exhibit (again save for its relationship to PT/2 and hence the Slalom shirt) when it tended to support the Police's initial theory which linked the atrocity to the "Autumn Leaves" gang.
43. While chapter 9 of the SCCRC Statement of Reasons concerns this allegation, also contained within chapter 9 is evidence that casts light on the authenticity of another page of Dr Hayes notes (page 61).
44. Having lain unnoticed in the Dexstar Warehouse for four months in early May 1989 developments in relation to this exhibit came thick and fast. Mr and Mrs Horton were interviewed at their home on the 10th May 1989 by two officers from the Northumberland Constabulary. On this occasion they may have signed the property label for the exhibit. However as the SCCRC report makes absolutely clear (para.9.62) they were not shown the original exhibit but a photocopy apparently because of the fragility of the item. (The SCCRC were unable to locate this photocopy). A note on the Holmes computer (para.9.65) states "it is proposed to have the Instruction Manual (Label No.PK689) shown to this witness on its release from RARDE."
45. Then on the 11th May 1989 the exhibit was conveyed to RARDE by two very senior Police Officers DCS Stuart Henderson and DCI Harry Bell. At some point the exhibit and the label signed by Mr & Mrs Horton (if indeed they had signed it at this point) were put together. Presumably either the label had been sent to the Lockerbie HQ or the two men had picked it up on their way south.
46. On its arrival at RARDE it was photographed on the 12th May 1989 which is the very day Dr Hayes supposedly discovered PT/2 in the neckband of a grey shirt. As PT/2 and PK/669 are purported to come from the same Toshiba bombeat instruction manual that was supposedly packed inside the "primary suitcase that exploded aboard flight PA103 31,000 feet above the Scottish borders this is quite remarkable. PT/2 was supposedly blasted into the shirt, fluttered to earth and lay in the open for a month before these piece of cloth or debris was collected and handed in to the Dexstar warehouse on or about the 25th January 1989. PK/689 was ripped out of the manual and the two sheets "lightly adhered together" (by some unknown adhesive force) were carried on the wind 100 miles to Northumberland where it was discovered by the Hortons on the morning of the 23rd December 1988. This was handed over to their local Police who passed it to Dexstar where it was ignored for months. And then it is transported 400 miles to RARDE where it is photographed the very day Dr Hayes discovers another part of the instruction manual!
47. However having been photographed (and this photograph does not feature in the RARDE photographic index) when the exhibit itself was returned to RARDE is, according to the Statement of Reasons, a matter of contention. The SCCRC state (para.9.71) "In short, there are inconsistencies in the records at RARDE of exactly what happened to the fragment after its receipt on the 11th May 1989. It is clear from other papers recovered by members of the enquiry team from files held at FEL that the precise timing and circumstances of PK/689's submission for fingerprinting was a source of some confusion."
47. However having been photographed (and this photograph does not feature in the RARDE photographic index) when the exhibit itself was returned to RARDE is, according to the Statement of Reasons, a matter of contention. The SCCRC state (para.9.71) "In short, there are inconsistencies in the records at RARDE of exactly what happened to the fragment after its receipt on the 11th May 1989. It is clear from other papers recovered by members of the enquiry team from files held at FEL that the precise timing and circumstances of PK/689's submission for fingerprinting was a source of some confusion."
48. Page 61 of Dr Hayes notes "recorded that PK/689 was received at RARDE on 11th May 1989, that it was "Passed to D/C Jordan on the same date for non-destructive fingerprints" and then "Returned to RARDE on 16/5/89" and "passed to D/C Jordan on 16/5/89 for chemical treatment." This apparently was at odds with DC Jordan's statement (doubtless written with the aid of the official records) that PK/689 was not returned until the 30th June 1989.
49. Para.9.70 continued that Mr McKechnie's submissions "refer to the evidence of Dr Hayes and Mr Feraday about these entries and the RARDE report (CP181, section 6, p107) which indicated that the fragments of manual that assisted in identifying the radio cassette recorder (i.e.PK/689 )were not received at RARDE until 30 June 1989.". Mt Feraday's testimony was that the RARDE report contained an error which arose from his misreading records of the fragment's movements 30 June 1989 being a subsequent date on which PK/689 was submitted to RARDE rather than the first date."
50. Para.9.80 states "The forensic scientists were asked about the allocation of PT numbers during interviews with members of the Commission's enquiry team. As regards PT/2, Mr Feraday suggested that these paper fragments might have been allocated the reference PT/2 in order to associate them with the control sample Toshiba manual, which was designated PT/1. Dr Hayes suggested at first that the PT numbers had been allocated in sequence, and therefore PT/35 might have been extracted from PI/995 at a later date that PT/2 but this explanation is inconsistent with the photographic records mentioned above. Generally, it is clear that the sequence of PT numbering for many items does not correspond to the date order in Dr Hayes notes. In the Commission's view it is not possible to draw any sinister inference from this." On the other hand it is hardly reassuring.
51. However the Forensic Document Examiner Mr McCrae had made a further curious discovery in relation to page 61 of Dr Hayes notes of the examination of PK/689 on the 16th May 1989 (which contain the note explaining how the exhibit was returned to RARDE on that day and then immediately returned.) "One of the pages examined was page 42(a) dated 4th July 1989. However the trace of this page showed indentations that appear to correspond to parts of the examination of PK/689 on page 61 (although this fact is not specifically referred to in Mr McCrae's report). All things being equal one would expect there to have been over forty sheets of examination paper between 61 of Dr Hayes' notes, dated 16 May 1989, and the notes he made on 4 July 1989. The fact that a trace of the former appears on the latter is therefore difficult to explain. Dr Hayes was questioned in detail about this issue at interview, but was unable to offer any explanation for it." This would appear to cast doubt as to whether the item photographed on the 12th May 1989 was in fact returned to RARDE on the 16th.May 1989.
46. One possible explanation could be that the document recovered by the Hortons and conveyed to RARDE on the 11th May 1989 (and photographed on the 12th May 1989) was not actually returned until Friday the 30th June and that the item now described as "The Horton Manual" is not what was handed in. The photograph taken on the 12th May 1989 would confirm this one way or another but that did not feature in the RARDE photographic report.. One wonders why not.
47. Para.9.11 of the SCCRC's Statement of Reasons quotes the RARDE report that, when first submitted by the Police for forensic examination PK/689 was:
47. Para.9.11 of the SCCRC's Statement of Reasons quotes the RARDE report that, when first submitted by the Police for forensic examination PK/689 was:
"apparently an irregularly shaped single fragment of paper, shown in photograph 266, which measured approximately 135 mm x 125 mm. detailed examination revealed that the fragment to consist of two overlaid sheets lightly adhering together having the same irregular shape ... The sheets appeared to have been violently impacted and disrupted and bore localised areas of blackening and scorching consistent with their close explosive involvement"
48. The report then reproduces photograph 266 of the RARDE photographic index showing the item (which appears identical to the left hand sheet of the photograph 267 )(below).
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(This is not the original Police photograph taken on the 12/5/89) |
49. . According to photographic Log Book 1 photographs F7386-9 Subject "PP8932 MANUAL + LOCK" were taken on the 16th May 1989, F7386-8 being photographs 266-268. (F7389 presumably a photograph of a lock.) The photograph taken on the 12th May 1989 (F7384) (described as "PAPER DEBRIS"), is not listed in the Photographic Index of the RARDE report. Does it depict what is shown in photograph 266 or is it something dissimilar? We do not know. The SCCRC relied on the RARDE photographic index (and the above photograph taken on the 16th May) as to what the "Horton Manual" was rather than finding the original photograph of the 12th May 1989.
50. Of interest para.9.21 of the Statement of Reasons states "Both" (Mr and Mrs Horton) "recalled the presence of some kind of electrical diagram on the item" while a Police witness (para.9.52) described the item handed in as a "piece of paper which had different languages on it." The diagram on page 2 and page 3 with different languages would have been on the inside of the two pages stuck together. Page 4 is written entirely in English. So if photograph 266 (above) is what was handed in how would the diagram and the foreign writing be seen by Mr & Mrs Horton and the Police witness? Photograph 266 shows only one side of PK/689 - there is no photograph of the reverse (which would have been page 4). Please also note (below)the complete absence of scorching on the two pages of the "Horton Manual"(photographs 267 & 268). The writing is absolutely pristine! Further, this item has supposedly been returned from fingerprinting and chemical tests!
50. Of interest para.9.21 of the Statement of Reasons states "Both" (Mr and Mrs Horton) "recalled the presence of some kind of electrical diagram on the item" while a Police witness (para.9.52) described the item handed in as a "piece of paper which had different languages on it." The diagram on page 2 and page 3 with different languages would have been on the inside of the two pages stuck together. Page 4 is written entirely in English. So if photograph 266 (above) is what was handed in how would the diagram and the foreign writing be seen by Mr & Mrs Horton and the Police witness? Photograph 266 shows only one side of PK/689 - there is no photograph of the reverse (which would have been page 4). Please also note (below)the complete absence of scorching on the two pages of the "Horton Manual"(photographs 267 & 268). The writing is absolutely pristine! Further, this item has supposedly been returned from fingerprinting and chemical tests!
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| Photograph 267 Pages 1 & 3 of the "Horton Manual" |
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| Photograph 268 Pages 2 & 4 of the "Horton Manual" |
52. Photographs 269-272 (F7400-7403) which compare the (now) four sides of PK/689 with pages 1-4 of PT/1 (a control sample of Bombeat SF-16 owners manual.) These photographs were not taken until the 19/6/89 along with Photographs 273-279. (The five sheets of PT/2).
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| Page 1 juxtaposed with page 1 of control sample PT/2 |
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| Page 2 juxtaposed with page 2 of PT/1 |
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| Page 3 juxtaposed with page 3 of PT/1 |
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| Page 4 juxtaposed with page 4 of PT/1 Photographs 269-72 (F7400-7402) taken 19/6/89 |
53. (Photograph 273 in the RARDE Photographic Index is a further copy of photograph 117.) Photographs 274-280 depict both sides the five sheets of PT/2 juxtaposed against five sheets of a control sample of a Toshiba Bombeat manual PT/1.
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| Sides A & B of Sheet 1 of PT/2 matched to page 3 & 4 of control sample PT/2 |
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| Sides A & B of page 2 of PT/2 matched to page 5 & 6 of Control Sample PT/1 |
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| Sides A & B of page 3 of exhibit PT/2 matched to page 7 & 8 of control sample PT/1 |
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| Sides A & B of page 4 of exhibit PT/2 matched to page 9 & 10 of control sample PT/1 |
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| Sides A & B of page 5 of exhibit PT/2 matched with page 11 & 12 of control sample PT/1 |
57. While the first two photographs describe what is depicted as "PT/2" -"part of PI/995" there is no mention of PT/35.
58. While the SCCRC saw "no reason" to doubt that page 51 of Dr Hayes notes was written on the 12th May 1989 not only does Dr Hayes sketch both sides of the five sheets of PT/2 but he also identifies them as being part of a particular model of instruction manual! During the Camp Zeist trial (page 2592) Dr Hayes was asked by defence Barrister Bill Taylor "Well I understand you to tell us that these were contemporaneous notes prepared as were carrying out your examinations, is that right" to which Doctor Hayes replied "Yes, but presumably our definitions of contemporaneous are different." Regrettably he wasn't asked what his definition of contemporaneous was.
59. Could perhaps the sketches in page 51 have been added some time after sub-paragraph (d) was written? Was page 51 started on the 12th May 1989 and sub-paragraph (d) and the sketches added at some later date? Page 1 of PT/2 (relating to page 3 of the control sample) being logically the front (or back) of the wad of paper is in English. The sheet logically on the back (or front) of the wad in photograph 117 (that is Sheet B of page 5 relating to page 12 of the control sample) is blank. But sub-paragraph (d) refers to a multi-layered fragment in various languages. Of course it appears possible that line (d) of page 51 and the sketches below it could have been added later if page 51 originally only referred to the discovery of items (a) - (c) and item (d) (PT/2) was tacked on later. (see page 51 below and draw an imaginary line under line (c)) This is the evidence on which a man was convicted of 270 murders.
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| Page 51 (again) |
60. It is remarkable that Doctor Hayes was able to match page 1-5 of PT/2 to pages 3-12 of the control sample PT/1 on the 12th May as even in the dubious RARDE version of events Dr Hayes did not examine PK/689 (the Horton Manual) until the 16th May 1989 and therefore could not have identified which particular manual should be the control sample PT/1. (Perhaps the false date on page 51 is to "prove" the fragments of PT/2 were identified before Dr Hayes had even examined the Horton Manual). However the Forensic Document Examiner casts considerable doubt as to whether page 61 (the examination of the Horton Manual) was actually written on the 16th May 1989 at all and not much later.
61. There are three fundamental problems with the Horton Manual (and indeed PT/2.) Firstly having built an IED within a radio cassette recorder why would the culprits also pack the instruction manual in the primary suitcase? Secondly if an instruction manual was in fact sandwiched between the IED and an item of clothing contained within the primary suitcase could anything survive the 10,000 degree explosion in a state that could be read? (See photos 266-8). Thirdly does the remnants of this manual in fact identify the model of recorder within which the IED was built or did the bomb-maker pop in any manual that was to hand?
62. On the 7th January 2010 BBC's Newsnight broadcast an article featuring forensic tests carried out by an alleged explosives expert Dr John Wyatt (His PhD appears to have been awarded to the teenage John Wyatt by a South African prep school. He may not even be a University graduate. "Dr" Wyatt's also purports to be a member of the Institute of Explosive Engineers. They have no record of him.) These tests concluded that nothing identifiable from the IED would have survived the blast. Following this broadcast an anonymous Crown Office spokesman claimed that in the debris produced by the April 1989 Indian Head tests (conducted by amongst others Alan Feraday & Tom Thurman) fragments of circuit board, fragments of cassette casings and parts and fragments of instruction manual were recovered in a condition similar to that of those recovered from the Lockerbie crime scene.
63. While, with Crown Office spokespersons, there is always the possibility that they are just making up claims on the hoof, the question arises as to why similar instruction manuals would feature in the Indian Head tests at all! Who could have guessed that the bombmaker (or whoever packed the primary suitcase) would include an instruction manual? (Building an IED inside the radio-cassette might invalidate the warranty).
64. At page 81 of "On the Trail of Terror" David Leppard had written "Incredibly none of the search teams had noticed a partly burnt Toshiba radio instruction manual for a bombeat SF 16 which had been recovered from the crash site. It was to be left lying in Superintendent Roxburgh's property store at the Dexstar warehouse for months.
The leaflet was written in both English and Arabic. Details had been logged on to the Holmes computer, but were left forgotten, buried in a mass of data until August. The operating instructions and the packaging were never assigned to any particular passenger or piece of passenger luggage.
It was only months later that Bell established from Toshiba that the only radios with Arabic instructions were those sold in the Arab-speaking world. "It can therefore be assumed' an investigation summary stated, "'that the aforementioned radio recorder was sold in the Near East'."
65. Of course (assuming that the instruction manual related to the cassette recorder containing the IED) does this not give an insight into the Police investigation? - "the only radios with Arabic instructions were those sold in the Arab-speaking world" - so why were the instructions also in English, Spanish and Chinese? (Perhaps Toshiba meant or said that all radios sold in the Arab world contained instructions in Arabic.)
62. On the 7th January 2010 BBC's Newsnight broadcast an article featuring forensic tests carried out by an alleged explosives expert Dr John Wyatt (His PhD appears to have been awarded to the teenage John Wyatt by a South African prep school. He may not even be a University graduate. "Dr" Wyatt's also purports to be a member of the Institute of Explosive Engineers. They have no record of him.) These tests concluded that nothing identifiable from the IED would have survived the blast. Following this broadcast an anonymous Crown Office spokesman claimed that in the debris produced by the April 1989 Indian Head tests (conducted by amongst others Alan Feraday & Tom Thurman) fragments of circuit board, fragments of cassette casings and parts and fragments of instruction manual were recovered in a condition similar to that of those recovered from the Lockerbie crime scene.
63. While, with Crown Office spokespersons, there is always the possibility that they are just making up claims on the hoof, the question arises as to why similar instruction manuals would feature in the Indian Head tests at all! Who could have guessed that the bombmaker (or whoever packed the primary suitcase) would include an instruction manual? (Building an IED inside the radio-cassette might invalidate the warranty).
64. At page 81 of "On the Trail of Terror" David Leppard had written "Incredibly none of the search teams had noticed a partly burnt Toshiba radio instruction manual for a bombeat SF 16 which had been recovered from the crash site. It was to be left lying in Superintendent Roxburgh's property store at the Dexstar warehouse for months.
The leaflet was written in both English and Arabic. Details had been logged on to the Holmes computer, but were left forgotten, buried in a mass of data until August. The operating instructions and the packaging were never assigned to any particular passenger or piece of passenger luggage.
It was only months later that Bell established from Toshiba that the only radios with Arabic instructions were those sold in the Arab-speaking world. "It can therefore be assumed' an investigation summary stated, "'that the aforementioned radio recorder was sold in the Near East'."
65. Of course (assuming that the instruction manual related to the cassette recorder containing the IED) does this not give an insight into the Police investigation? - "the only radios with Arabic instructions were those sold in the Arab-speaking world" - so why were the instructions also in English, Spanish and Chinese? (Perhaps Toshiba meant or said that all radios sold in the Arab world contained instructions in Arabic.)
66. The panel of Judges at Camp Zeist accepted at face value Marwan Khreesat's hearsay (as represented by the evidence of one of the two FBI officers (Marshmann & Thomas Thurman who interviewed Khreesatn in Amman Jordan in November 1989 the absence of the Scottish Police) and self-serving denial that he had never used a twin speaker radio-cassette recorder to house one of his aviation bombs. (Rather than noting his confession to having constructed aviation bombs!)
67. PT/2 and the Horton Manual were discovered shortly after Alan Feraday had returned from the USA where he had conducted a number of reconstructions of the bombing at a facility in Indian Head, Maryland. The FBI's forensic expert Thurman (who holds a degree in political science) was also there. Thurman was later relieved of his position in the FBI following an investigation which revealed how he would alter reports to make them more favourable to the prosecution case.
68. Khreesat may indeed have been telling the truth in claiming he had never built an IED in a twin speaker radio-cassette recorder. However if page 51 could not legitimately have been created before the photograph 117 was taken it is not simply a matter of dispute when PT/2 and PT 35(b) where discovered but whether they were in fact discovered at all. There is little or no credible evidence as to which model radio-cassette was used to house the IED , indeed perhaps none, that the IED was contained within a cassette-recorder, single or twin speaker at all and the initial investigation was coloured by "Autumn Leaves" !
The Statement of Dr Thomas Hayes
69. The (then) 66 year old Dr Thomas Hayes was interviewed on the 8th March 2006 by two Legal Officers of the SCCRC Gordon Newall (good cop) & Andrew Beadsworth (even nicer cop.) While the SCCRC Statement of Reasons (see para.27 above) selectively quote Dr Hayes in support of a theory his statement is quite remarkable for how little Dr Hayes actually recalls of the key issues. Certainly the two SCCRC officials cover, in a logical sequence, nearly all the issues in question. The problem is they never get a straight answer and move on from topic to topic without ever properly concluding with any particular aspect.
70. Indeed the two officials raise many of the same anomalies as are raised in this paper and pick up on the same points. For example as at para.31 above they have gone through the photographic log books to find the only reference to Dr Hayes (on the 5/4/89) between the 28/3/89 and the 12/5/89.
71. The statement deals with his resignation (effective date unstated) from being head of RARDE in order to pursue a new career in chiropody and his being retained as a consultant to deal exclusively with the Lockerbie case. There is no indication as to why he resigned though the SCCRC officials question him as to why there is no record of his conducting any examinations between the 15/3/89 and the 12/5/89. They don't really get answer apart from some vague comments about his being engaged on administrative and supervisory duties (somewhat at odds with working exclusively on the Lockerbie case.)
72. The interview continues on the subject of the logic of the numbering of exhibits (presumably in relation to the discovery of PT/2 and PT/35 on the same day.) Again they do not really get a straight answer and Dr Hayes "explanation" rather undermines the credibility of his evidence. For example at page 48 of his statement:-
Answer: "Well yes. I mean obviously I've written them down there as I've raised them. So I would have raised them in the order in which I identified them, which doesn't as we can see necessarily mean the date of the original examination, if they hadn't been at that stage identified. So, if PT/2 was raised on that date say, despite what it says in this note with the date against it, and then subsequently I've been made aware through perhaps further examination of the significance of these items, (a), (b) and (c) against PI/995, then they would have been raised at that date some time later after PT/34 and the next number being 35. That's the best I can explain that and say therefore the dates alongside here in the copy of my book is completely misleading in relation to the date in which the items were raised.".
73. At page 50 Dr Hayes "clarifies" his position:
Answer: "Certainly not back-dated, no. There'd be no reason I can think of for that. Where they appear out of sequence I think is certainly our concern. There is an explanation for that but what it is I don't know or at least I can't recall."
74. After a lengthy discussion of photographs 116 & 117 (pages 50-58) the interview moved on to "page 51" and the renumbering of pages 52-56. Initially Dr Hayes claimed it was a simple mistake arising from his having mistakenly numbered two pages as "51". The SCCRC officials then raised the results of the ESDA tests in particular the absence of the imprint on page 52 of page 51 but the imprint of "PP/8922" and a date "17th". Dr Hayes (not the SCCRC) posed the crucial question "but why? 8922. What was that doing under page 51 then?" (page 66).
75. The SCCRC remind Dr Hayes that page 51 was written on the 12/5/89 page 52 on the 15/5/89. Dr Hayes asked "yes, what happened in between?" to which the SCCRC respond "A weekend." (A fact omitted from the Statement of Reasons ) Interestingly Dr Hayes suggests that the SCCRC go back to the notes of case 8922 "just to see the dates of the examination notes". The SCCRC official responds "Now that's not something I've done, I haven't done that. I haven't asked for access to PP/8922. I don't even know if they still have papers, I think they will" to which Dr Hayes responds "I would think so". This is not a peripheral matter but goes to the heart of the mystery of "page 51". So why didn't the SCCRC obtain the file of case 8922?
The Slalom Shirt:
76. Photograph 117 casts grave doubt on the authenticity of page 51 of Dr Hayes notes and the supposed discovery of the fragment of MEBO timer and the five sheets of PT/2 supposedly blasted into a strip of grey Slalom brand shirt. But is also casts doubt on the authenticity of the Slalom shirt itself. This was one of a number of items supposedly purchased in Silema, Malta by Megrahi on the 7th December 1988 from Tony Gauci at the St Mary's House boutique or at least by a tall middle-aged barrel-chested "Libyan" on the 23rd November 1988.
77. In his first interview with the Scottish Police in September 1989 Gauci remembered the sale perfectly from ten months earlier. He remembered precisely what his mystery customer had bought and precisely what the items had cost totally 76.5 Maltese pounds. His customer had paid with 8 x 10 Maltese pound notes and Gauci had given him 4 pounds change. However there was no shirt amongst the items purchased. Only much later did Gauci recall having sold him a Slalom brand shirt (beige rather than grey) rather undermining his initial precise recollection. Gauci had also supposedly sold his customer a 42" men's herringbone jacket which he had despaired of getting rid of. Curiously he was able to supply the Scottish Police with an identical item! This it transpired did not match the blast damaged jacket actually recovered!
78. Of course in the official version of events the "primary suitcase" was packed with the Malta clothing, the IED within a radio-cassette recorder, and the instruction manual in Malta from where it was transported unaccompanied on flight KM180 Malta-Frankfurt and flight PA103A Frankfurt-Heathrow where it was placed within luggage container AVE4041 with other baggage transferred from PA103A. This was mere conjecture and there is little or no doubt that the primary suitcase was placed within AVE4041 at the Interline Baggage Shed before PA103A had touched down at Heathrow. But besides the IED did the primary suitcase contain the instruction manual of even the radio-cassette recorder. If it was introduced at Heathrow was it the IED alone or the Samsonite suitcase as well that had been smuggled into the UK, unless of course the IED itself was actually "made in England"! Why did that bronze Samsonite suitcase, seen in AVE4041 on the afternoon of the 21st December 1988 contain clothing purchased in Malta four weeks earlier? Or did it?
Conclusion:
79. This paper does not deal with the entirety of the SCCRC Statement of Reasons. The Statement of Reasons did not address, what was, in the author's opinion, the key issue - the Airport at which the primary suitcase was introduced. It is possible that Mr Megrahi's defence team never raised the issue but the submissions made to the Commission are not in the public domain.
80. However in relation to the three related items dealt with in this paper "page 51" , "photograph 117", and "the Horton Manual" the Statement of Reasons is deeply and fundamentally flawed. While the Crown Office claimed that "the SCCRC found nothing to undermine the Trial Court's conclusion about the timer fragment" this is dependent on the SCCRC's repeated conclusion that both "page 51" and "photograph 117" are genuine and corroborate each other. However by examining what is actually depicted on page 51 (which the SCCRC did not apparently do) it is quite obvious that there is a glaring discrepancy between the two. Astonishingly Mr Mergrahi's several defence teams did not notice it either and Mr McKechnie only raised photograph 117 to illustatrate a supposed discrepancy between photograph 116 and 117 which the SCCRC easily, and credibly, explained away.
81. Mr McKechnie also made a submission concerning page 51 alleging it had been inserted into the record. He did not notice that in photograph 117 PT/2 had yet to be taken apart, Astonishingly the SCCRC cited photograph 117 as evidence page 51 was genuine!
82.. However it is self-evident that "page 51" could not legitimately have been written before PT/2 was photographed (although it is possible it was written wholly or in part on this day.)
83. There would appear to be considerable doubt that the item known as "The Horton Manual" photographed on the 12th May 1989 is the same item as that depicted in photograph 266 (FC 7386) taken on the17th May 1989. It is regrettable that the SCCRC did not obtain the photograph taken on the 12th May 1989 (F7384). This doubt might be resolved by comparing the photograph taken on the 12th May with the photograph taken on the 16th May 1989 but the SCCRC only reproduce the latter in the Statement of Reasons (without explaining that this was not the photograph taken on the 12th May 1989.)
84. While the SCCRC rely on the photographic log as conclusive evidence that photograph 117 was taken on the 22nd May 1989 there is no chain of evidence to prove that the negative in the sheath of photograph FC3521 is the original negative.
85. While the date on page 51 may only be inaccurate by a matter of days this is a matter of great significance as to whether PT/2 was discovered before or after the examination of what is purported to be the "Horton Manual." However if the date was deliberately falsified then that would cast doubt on the supposed circumstances of its discovery or whether it was actually "discovered" at all. It also casts doubt on whether the fragment of MEMO time PT 35(b) was discovered or created.
86.. While the SCCRC failed to grasp that the contents of "page 51" are fundamentally at odds with what is depicted in photograph 117 it is curious that none of Mr Megrahi's three defence teams grasped it either. Dr Hayes was never questioned at the Camp Zeist trial (or by the SCCRC) upon the contents of "page 51" in particular how he was able to identify the five sheets of PT/2 as having been part of a Toshiba Bombeat manual when photograph 117 depicted PT/2 as a single wad of paper ten days later!
87. PT/2 and the "Horton Manual" (PK/689) are literally incredible. Leaving aside why the bomber would pack an instruction manual PT/2 supposes that this manual was within the primary suitcase and in the course of the explosion something ripped through this manual blasting a fragment of five sheets into an item of clothing. Yet "The Horton Manual" supposedly survived the blast substantially intact. Is that even vaguely credible? The exhibit is not even schorched. Which side faced the blast?
88. Without PT/2 and PT 35(b) the RARDE Forensic Examination would have achieved little or nothing. With this single "discovery" Dr Hayes implicated Libya and gave credence to the theory that the IED was triggered by a timer and not a barometric trigger allowing the possibility (which was actually untrue) that the primary suitcase had arrived at Heathrow from Frankfurt on PA103A. This "discovery" also miraculously tied these two key exhibits to the Malta clothing (with some amendment to Gauci's initial precise claims of what had been bought.
89. What did Dr Hayes actually discover and when? Which items of PT 35(a)-(d) are actually genuine? Was anything actually found in the collar of this strip of Slalom shirt? Indisputably Dr Hayes could not legitimately have sketched PT/2 before photograph 117 was taken and perhaps the bottom half of page 51 was added after photograph 117 was taken. Nobody knows. The essential point is that there is now no credible evidence whatsoever that PT 35(b) and PT/2 were recovered on the 12th May 1989 in the collar of a Slalom shirt by Dr Hayes and as supposedly witnessed by Alan Feraday.
83. This of course renders Megrahi's conviction unsustainable.
67. PT/2 and the Horton Manual were discovered shortly after Alan Feraday had returned from the USA where he had conducted a number of reconstructions of the bombing at a facility in Indian Head, Maryland. The FBI's forensic expert Thurman (who holds a degree in political science) was also there. Thurman was later relieved of his position in the FBI following an investigation which revealed how he would alter reports to make them more favourable to the prosecution case.
68. Khreesat may indeed have been telling the truth in claiming he had never built an IED in a twin speaker radio-cassette recorder. However if page 51 could not legitimately have been created before the photograph 117 was taken it is not simply a matter of dispute when PT/2 and PT 35(b) where discovered but whether they were in fact discovered at all. There is little or no credible evidence as to which model radio-cassette was used to house the IED , indeed perhaps none, that the IED was contained within a cassette-recorder, single or twin speaker at all and the initial investigation was coloured by "Autumn Leaves" !
The Statement of Dr Thomas Hayes
69. The (then) 66 year old Dr Thomas Hayes was interviewed on the 8th March 2006 by two Legal Officers of the SCCRC Gordon Newall (good cop) & Andrew Beadsworth (even nicer cop.) While the SCCRC Statement of Reasons (see para.27 above) selectively quote Dr Hayes in support of a theory his statement is quite remarkable for how little Dr Hayes actually recalls of the key issues. Certainly the two SCCRC officials cover, in a logical sequence, nearly all the issues in question. The problem is they never get a straight answer and move on from topic to topic without ever properly concluding with any particular aspect.
70. Indeed the two officials raise many of the same anomalies as are raised in this paper and pick up on the same points. For example as at para.31 above they have gone through the photographic log books to find the only reference to Dr Hayes (on the 5/4/89) between the 28/3/89 and the 12/5/89.
71. The statement deals with his resignation (effective date unstated) from being head of RARDE in order to pursue a new career in chiropody and his being retained as a consultant to deal exclusively with the Lockerbie case. There is no indication as to why he resigned though the SCCRC officials question him as to why there is no record of his conducting any examinations between the 15/3/89 and the 12/5/89. They don't really get answer apart from some vague comments about his being engaged on administrative and supervisory duties (somewhat at odds with working exclusively on the Lockerbie case.)
72. The interview continues on the subject of the logic of the numbering of exhibits (presumably in relation to the discovery of PT/2 and PT/35 on the same day.) Again they do not really get a straight answer and Dr Hayes "explanation" rather undermines the credibility of his evidence. For example at page 48 of his statement:-
Answer: "Well yes. I mean obviously I've written them down there as I've raised them. So I would have raised them in the order in which I identified them, which doesn't as we can see necessarily mean the date of the original examination, if they hadn't been at that stage identified. So, if PT/2 was raised on that date say, despite what it says in this note with the date against it, and then subsequently I've been made aware through perhaps further examination of the significance of these items, (a), (b) and (c) against PI/995, then they would have been raised at that date some time later after PT/34 and the next number being 35. That's the best I can explain that and say therefore the dates alongside here in the copy of my book is completely misleading in relation to the date in which the items were raised.".
73. At page 50 Dr Hayes "clarifies" his position:
Answer: "Certainly not back-dated, no. There'd be no reason I can think of for that. Where they appear out of sequence I think is certainly our concern. There is an explanation for that but what it is I don't know or at least I can't recall."
74. After a lengthy discussion of photographs 116 & 117 (pages 50-58) the interview moved on to "page 51" and the renumbering of pages 52-56. Initially Dr Hayes claimed it was a simple mistake arising from his having mistakenly numbered two pages as "51". The SCCRC officials then raised the results of the ESDA tests in particular the absence of the imprint on page 52 of page 51 but the imprint of "PP/8922" and a date "17th". Dr Hayes (not the SCCRC) posed the crucial question "but why? 8922. What was that doing under page 51 then?" (page 66).
75. The SCCRC remind Dr Hayes that page 51 was written on the 12/5/89 page 52 on the 15/5/89. Dr Hayes asked "yes, what happened in between?" to which the SCCRC respond "A weekend." (A fact omitted from the Statement of Reasons ) Interestingly Dr Hayes suggests that the SCCRC go back to the notes of case 8922 "just to see the dates of the examination notes". The SCCRC official responds "Now that's not something I've done, I haven't done that. I haven't asked for access to PP/8922. I don't even know if they still have papers, I think they will" to which Dr Hayes responds "I would think so". This is not a peripheral matter but goes to the heart of the mystery of "page 51". So why didn't the SCCRC obtain the file of case 8922?
The Slalom Shirt:
76. Photograph 117 casts grave doubt on the authenticity of page 51 of Dr Hayes notes and the supposed discovery of the fragment of MEBO timer and the five sheets of PT/2 supposedly blasted into a strip of grey Slalom brand shirt. But is also casts doubt on the authenticity of the Slalom shirt itself. This was one of a number of items supposedly purchased in Silema, Malta by Megrahi on the 7th December 1988 from Tony Gauci at the St Mary's House boutique or at least by a tall middle-aged barrel-chested "Libyan" on the 23rd November 1988.
77. In his first interview with the Scottish Police in September 1989 Gauci remembered the sale perfectly from ten months earlier. He remembered precisely what his mystery customer had bought and precisely what the items had cost totally 76.5 Maltese pounds. His customer had paid with 8 x 10 Maltese pound notes and Gauci had given him 4 pounds change. However there was no shirt amongst the items purchased. Only much later did Gauci recall having sold him a Slalom brand shirt (beige rather than grey) rather undermining his initial precise recollection. Gauci had also supposedly sold his customer a 42" men's herringbone jacket which he had despaired of getting rid of. Curiously he was able to supply the Scottish Police with an identical item! This it transpired did not match the blast damaged jacket actually recovered!
78. Of course in the official version of events the "primary suitcase" was packed with the Malta clothing, the IED within a radio-cassette recorder, and the instruction manual in Malta from where it was transported unaccompanied on flight KM180 Malta-Frankfurt and flight PA103A Frankfurt-Heathrow where it was placed within luggage container AVE4041 with other baggage transferred from PA103A. This was mere conjecture and there is little or no doubt that the primary suitcase was placed within AVE4041 at the Interline Baggage Shed before PA103A had touched down at Heathrow. But besides the IED did the primary suitcase contain the instruction manual of even the radio-cassette recorder. If it was introduced at Heathrow was it the IED alone or the Samsonite suitcase as well that had been smuggled into the UK, unless of course the IED itself was actually "made in England"! Why did that bronze Samsonite suitcase, seen in AVE4041 on the afternoon of the 21st December 1988 contain clothing purchased in Malta four weeks earlier? Or did it?
Conclusion:
79. This paper does not deal with the entirety of the SCCRC Statement of Reasons. The Statement of Reasons did not address, what was, in the author's opinion, the key issue - the Airport at which the primary suitcase was introduced. It is possible that Mr Megrahi's defence team never raised the issue but the submissions made to the Commission are not in the public domain.
80. However in relation to the three related items dealt with in this paper "page 51" , "photograph 117", and "the Horton Manual" the Statement of Reasons is deeply and fundamentally flawed. While the Crown Office claimed that "the SCCRC found nothing to undermine the Trial Court's conclusion about the timer fragment" this is dependent on the SCCRC's repeated conclusion that both "page 51" and "photograph 117" are genuine and corroborate each other. However by examining what is actually depicted on page 51 (which the SCCRC did not apparently do) it is quite obvious that there is a glaring discrepancy between the two. Astonishingly Mr Mergrahi's several defence teams did not notice it either and Mr McKechnie only raised photograph 117 to illustatrate a supposed discrepancy between photograph 116 and 117 which the SCCRC easily, and credibly, explained away.
81. Mr McKechnie also made a submission concerning page 51 alleging it had been inserted into the record. He did not notice that in photograph 117 PT/2 had yet to be taken apart, Astonishingly the SCCRC cited photograph 117 as evidence page 51 was genuine!
82.. However it is self-evident that "page 51" could not legitimately have been written before PT/2 was photographed (although it is possible it was written wholly or in part on this day.)
83. There would appear to be considerable doubt that the item known as "The Horton Manual" photographed on the 12th May 1989 is the same item as that depicted in photograph 266 (FC 7386) taken on the17th May 1989. It is regrettable that the SCCRC did not obtain the photograph taken on the 12th May 1989 (F7384). This doubt might be resolved by comparing the photograph taken on the 12th May with the photograph taken on the 16th May 1989 but the SCCRC only reproduce the latter in the Statement of Reasons (without explaining that this was not the photograph taken on the 12th May 1989.)
84. While the SCCRC rely on the photographic log as conclusive evidence that photograph 117 was taken on the 22nd May 1989 there is no chain of evidence to prove that the negative in the sheath of photograph FC3521 is the original negative.
85. While the date on page 51 may only be inaccurate by a matter of days this is a matter of great significance as to whether PT/2 was discovered before or after the examination of what is purported to be the "Horton Manual." However if the date was deliberately falsified then that would cast doubt on the supposed circumstances of its discovery or whether it was actually "discovered" at all. It also casts doubt on whether the fragment of MEMO time PT 35(b) was discovered or created.
86.. While the SCCRC failed to grasp that the contents of "page 51" are fundamentally at odds with what is depicted in photograph 117 it is curious that none of Mr Megrahi's three defence teams grasped it either. Dr Hayes was never questioned at the Camp Zeist trial (or by the SCCRC) upon the contents of "page 51" in particular how he was able to identify the five sheets of PT/2 as having been part of a Toshiba Bombeat manual when photograph 117 depicted PT/2 as a single wad of paper ten days later!
87. PT/2 and the "Horton Manual" (PK/689) are literally incredible. Leaving aside why the bomber would pack an instruction manual PT/2 supposes that this manual was within the primary suitcase and in the course of the explosion something ripped through this manual blasting a fragment of five sheets into an item of clothing. Yet "The Horton Manual" supposedly survived the blast substantially intact. Is that even vaguely credible? The exhibit is not even schorched. Which side faced the blast?
88. Without PT/2 and PT 35(b) the RARDE Forensic Examination would have achieved little or nothing. With this single "discovery" Dr Hayes implicated Libya and gave credence to the theory that the IED was triggered by a timer and not a barometric trigger allowing the possibility (which was actually untrue) that the primary suitcase had arrived at Heathrow from Frankfurt on PA103A. This "discovery" also miraculously tied these two key exhibits to the Malta clothing (with some amendment to Gauci's initial precise claims of what had been bought.
89. What did Dr Hayes actually discover and when? Which items of PT 35(a)-(d) are actually genuine? Was anything actually found in the collar of this strip of Slalom shirt? Indisputably Dr Hayes could not legitimately have sketched PT/2 before photograph 117 was taken and perhaps the bottom half of page 51 was added after photograph 117 was taken. Nobody knows. The essential point is that there is now no credible evidence whatsoever that PT 35(b) and PT/2 were recovered on the 12th May 1989 in the collar of a Slalom shirt by Dr Hayes and as supposedly witnessed by Alan Feraday.
83. This of course renders Megrahi's conviction unsustainable.
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