Wednesday, 14 March 2012

HMA v HMA: The Next Pan Am 103 trial

[This is the headline over a blistering article on the website of Scottish lawyers’ magazine The Firm by Steven Raeburn, the editor. It reads as follows:]

As the discredited Pan Am 103 case continues to crumble further, with damning revelations coming to light on an almost daily basis, the failure of duty by some of Scotland’s senior law officers over the years since the aircraft was destroyed is becoming clearer. Their actions and inaction is being exposed to scrutiny that reinforces the UN trial observer Hans Kochler’s conclusion that they amount to new criminal offences in themselves. 

For example, The Herald is quoting former Lord Advocate Colin Boyd this morning as follows: 

“I reject the suggestion that I or anyone else in the prosecution team failed to disclose material evidence to the defence. All of the relevant CIA cables were disclosed subject to some exceptions, principally to ensure that the lives of named individuals were not put at risk. They were disclosed as a result of a request from the court directed to me. 

“I am satisfied that the Crown acted with propriety throughout the trial and endeavoured in this case, as with any other conducted in my name as Lord Advocate, to secure the accused’s right to a fair trial.”

Subject to some exceptions... This is crucial, and reveals the identifiable moment when the showpiece trial (or was it simply a show trial?) trial was corrupted. 

Leaving aside for the moment the 
numerous flaws in the handling of the case between 1988 and the commencement of the trial, co-accused Fhimah's solicitor Eddie McKechnie told me that the process of disclosure of these cables was tortuous. 

He said the Crown dissembled, hummed and hawed and delayed passing them over to the defence for months. (it was reported yesterday that the SCCRC threatened civil action against the Crown Office for the same reason.) As is now well known, the cables revealed only the useless testimony of CIA salaried informer Abdul Majid Giaka, whose evidence as a "fantasist" was dismissed in its entirety by the trial judges. 

What is not generally known, McKechnie told me, is that Crown Office themselves did not know what was in the cables until after the trial had commenced, because they had only been given redacted versions from the CIA, and hollow assurances from US intelligence that they contained key evidence that would stand up in court. In particular, they were told that Giaka could positively identify Megrahi and Fhimah and link them to the atrocity. 

The material in the cables was not evidence gathered by COPFS or Dumfries and Galloway police, as would normally be the case in a trial brought in Scotland. It was delivered on a plate fully formed by US intelligence services, a somewhat murky group of people not renowned for their honesty nor the integrity of their motivations. 

This point is rarely if ever understood or reported. It is often overlooked that Megrahi and Fhimah themselves were sourced and presented to the Crown Office by the CIA. They were not tracked down nor placed in the frame by Scottish investigators.

By the time the cable contents were disclosed, the trial arrangements were irrevocable and the geopolitical deals that continue to define this case were done at UK level in Westminster. Scots law was a passenger from this point, and a hijacked one at that. 

The revelation of the non-redacted cables is the key moment when the case should have been dropped by Lord Fraser, and where the criminal ineptitude begins. Everything COPFS has done since then (and the Scottish Government, to a more or less equal degree) is designed to shore up that mistake and the shoddy trial that resulted from it, and to deflect any suggestion of error, or worse. It was under Fraser’s tenure that key witness Tony Gauci was 
bribed, or rather, received “possible reward payments.” [RB: My understanding is that the payments were not made until after the Zeist trial in Lord Advocate Colin Boyd's tenure of office. There were, of course, inquiries, nods and winks aplenty long before that time.] 

Key Crown personnel can be forgiven for naiveté, but the mistakes that have been evidenced escalate from incompetence in the first instance, but morph into negligence, malfeasance and dereliction of duty as time has gone on and every opportunity to address and correct these issues is not only spurned, but actively blocked. The trial itself was tainted by the perpetuation of this error, as witnessed by United Nations Observer Hans Koechler. In 2005 he said that "the falsification of evidence, selective presentation of evidence, manipulation of reports, interference into the conduct of judicial proceedings by intelligence services," he observed at the Zeist trial were "criminal offences in any country."

He said that the "possible criminal responsibility, under Scots law, of people involved in the Lockerbie trial should be carefully studied by the competent prosecutorial authorities." 

Successive Crown regimes have aggressively protected their own flawed conduct to preserve the personal reputations of a very few. The justice system has suffered, and a new culture of paranoia, fear and insularity has put the Crown Office in a permanent mode of lockdown. The late Paul McBride described it as a siege mentality, although in the real world, removed from the paranoid fantasies of the Crown Office, the only assault it has actually been under is from the truth, sought by bereaved families, and, as time has gone on, a growing army of observers including luminaries such as Archbishop Desmond Tutu, Professor Noam Chomsky, John Pilger, Gareth Peirce, Robert Black QC, Cardinal Keith O Brien and those who signed an online petition submitted to the Holyrood petitions committee by the JFM group, all of whom have looked at the case for themselves and staked their reputations against the need for an inquiry. 

A full re-examination of the case will reveal the truth of Pan Am 103. It will also expose those culpable in our system to ridicule and the damning judgement of history.

If Scotland retained an independent Lord Advocate and a mature justice system, rather than the current degraded, paranoid runt of the once proud system, indictments would be issued at once by Frank Mulholland against former Lords Advocate Fraser, Boyd and Angiolini. Mulholland himself would step aside and submit to his successor for criminal scrutiny. The fact that the case of HMA v HMA is unlikely to appearing on the rolls of court anytime soon demonstrates the scale of the problem our system now faces in respect of this case. Her Majesty’s Advocate requires to investigate itself, but will not. Does the ICC now beckon? We are through the looking glass now.


  1. What are the preconditions for taking a case to the ICC? To what extent have they been met? Who would do it?

  2. I'm afraid Steven's enthusiasm ran away with him. I don't see any way in which the ICC could become involved. The Rome Statute which deals with the jurisdiction etc of the ICC can be found here:

  3. What about Article 8, 2(a)(vi)

    "Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial"

    Although this is under war crimes, 'other protected person' seems quite a flexible term. And what about the ECHR?

    For a long time there have been strong indications that the Scottish government is actively obstructing the release of the SCCRC report and has no intention of instituting any sort of enquiry. Steven Raeburn may at least be right about being 'through the looking glass' - this must now be investigated by some entity not already party to the crime.