During its four-year investigation, as
well as finding six grounds why Megrahi may have suffered a miscarriage of
justice, the Scottish Criminal Cases Review Commission examined numerous other
issues which, according to his lawyers, affected the safety of his conviction.
(...)
The Libyan
informant
A key witness against
Megrahi was a former Libyan Arab Airlines colleague, Majid Giaka, who was also
a junior intelligence officer and CIA informant. At trial the defence were
provided with partially redacted CIA cables about him.
After two of the Crown team had viewed
almost complete cables on 1 June 2000, the Lord Advocate assured the court that
the blanked out sections were of no relevance.
However, when less redacted versions
were eventually released they cast further doubt on Giaka’s credibility. In
their application to the SCCRC, Megrahi’s lawyers, who were not those who
represented him at trial, argued that the failure to release the full,
unredacted cables breached Megrahi’s right to a fair trial.
Remarkably, the SCCRC
was not allowed to view the full cables, but having read the partially redacted
ones, it commented:
it is difficult to understand the Lord
Advocate’s assurances to the court on 22 August 2000 that there was “nothing
within these documents which relate to Lockerbie or the bombing of Pan Am 103
which could in any way impinge on the credibility of Mr Majid on these
matters”. The matter is all the more serious given that part of the reason for
viewing the cables on 1 June 2000 was precisely in order to assess whether
information behind the redacted sections reflected upon Majid’s credibility.
The SCCRC nevertheless concluded that the failure to release the full
cables had not resulted in a miscarriage of justice. Twenty-two years on,
Giaka’s full story remains unknown.
The terrorist
whistleblower
Six months into
Megrahi’s trial the Crown disclosed a transcript of a lengthy deathbed
confession by Palestinian self-confessed terrorist Mobdi Goben. He
claimed that the bombing was the work of his own group, Popular Front for the
Liberation of Palestine – General Command (PFLP-GC), a Syrian and Iranian
backed faction who were the original prime suspects in the bombing.
The defence interviewed a number of
Goben’s relatives and associates who were seeking asylum in Norway, plus a man
whom Goben had implicated in the bomb plot.
However, the court refused a defence
motion to request further information from the Syrian, Iranian, American and
Swedish governments, and the allegations were never raised at trial. Megrahi’s
SCCRC submission argued that the Crown’s approach to the matter breached his
right to a fair trial.
The SCCRC raised the matter with
Megrahi’s junior counsel John Beckett, who said that the Goben evidence would
have been difficult to use. It also had access to undisclosed Crown documents,
which, in its view, contained nothing the defence didn’t already know. It
concluded: the Commission does not consider that the Crown’s handling of
matters concerning the Goben memorandum gave rise to a breach of the Crown’s
obligations … Accordingly, the Commission does not consider that a miscarriage
of justice may have occurred in this connection.
Goben’s claims remain unproven, but many who have studied the case,
including the British Lockerbie relative Dr Jim Swire, continue to hold the
PFLP-GC responsible for Lockerbie.
Prime suspect
No.1: Abu Elias
Mobdi Goben and PFLP-GC member, bomb-maker Marwan Khreesat, each
implicated another of group member, known as Abu Elias, in the bombing. (…)
A number of Megrahi’s unsuccessful
submissions to the SCCRC referred to Abu Elias. Although the Commission could
find no direct evidence of his involvement in the bombing, Abu Elias remains
the prime suspect for many of those who doubt Megrahi’s guilt.
Prime suspect
No.2: Abu Talb
The most unusual Crown
witness at Megrahi’s trial was convicted terrorist Mohamed Abu Talb, who was
serving a life sentence in Sweden for fatal bombings in Northern Europe in the
mid-eighties.
Previously a prime suspect in the
Lockerbie bombing, he had visited Malta two months before Lockerbie, returning
with clothes, and some of his associates had visited the German flat in which
the PFLP-GC’s Marwan Khreesat made barometric bombs. (…)
The SCCRC uncovered no
significant new evidence about Abu Talb, but was unable to properly investigate
an airline ticket, which suggested that he possibly made a second trip to Malta
at around the time that Tony Gauci said he sold the bomb suitcase clothing.
The report says: The Commission requested that D&G
(Dumfries and Galloway Police) ask the police officers involved in enquiries
relative to Abo Talb whether they had established that the position in respect
of the return portion of the ticket. D&G confirmed in a letter dated 19
April 2006 that none of the officers could recall making enquiries in this
connection … In the Commission’s view, although it is regrettable that the
matter was not checked with Scandinavian Airlines at the time of the police
investigation, there was no failure by the Crown to disclose material evidence
about the return portion of Talb’s flight ticket.
There is no smoking gun
to implicate Abu Talb, but his trip to Malta and his PFLP-GC connections
continue to fuel suspicions of his involvement in Lockerbie.
The
shopkeeper
Maltese shopkeeper Tony
Gauci was the key witness against Megrahi, as it was he who sold the clothes
that were supposedly packed into the bomb suitcase. In 1991 he made a tentative
identification of Megrahi, which he repeated at an ID parade 8 years later and
again during his trial evidence.
Although four of the SCCRC grounds of
referral concerned Gauci, the Commission rejected a number of submissions
contained in Megrahi’s original application. Among these was the claim
that Gauci had been taken to Scotland by the police, where he received treats
and hospitality, which may have influenced his evidence.
The Commission confirmed that Gauci was
taken to Scotland on a number of occasions, but considered that nothing
improper had taken place. It says: … almost all of Mr Gauci’s visits to
Scotland took place after he had given evidence. The only exception to this is
his visit in 1999 when he attended Dumfries for precognition and was taken
sight-seeing in Edinburgh the following day. However, in the Commission’s view
any possible significance that might have been attached to this by the defence
has to be seen in light of the other information contained in the reports
described above. It appears from this that far from viewing his visits to
Scotland and elsewhere as an incentive Mr Gauci was strongly opposed to his
removal from Malta which he regarded as a source of inconvenience.
Large question marks
remain over Gauci’s evidence. The SCCRC discovered that post-trial he received
a reward of at least $2 million from the US Department of Justice.
The CIA agent
The only US
investigator interviewed by the SCCRC, former CIA agent Robert Baer, reported
intelligence indicating that the Iranian government had commissioned the
PFLP-GC to bomb Pan Am 103. His sources suggested that two days after the
bombing $11 million was transferred into a PFLP-GC Swiss bank account and a few
months later $500,000 was paid into an account thought to belong to Abu Talb at
the Degussa Bank in Frankfurt.
Overall, the SCCRC
concluded: … the Commission has no reason to
doubt [Mr Baer’s] credibility. However, as he himself acknowledged, he has no
direct knowledge of any of the information in his possession, which came
largely from CIA telexes. As with all intelligence, the validity of that information was very much dependent upon the
reliability of its source which in many cases Mr Baer was unable to vouch.
The Baer chapter
demonstrates the limited reach of the SCCRC’s inquiry and is probably the
report’s most disappointing.
‘The Golfer’
The Golfer was the
cover name of a police officer who told Megrahi’s then legal team that key
items of evidence had been manipulated to fit the prosecution case.
Subsequent submissions to the SCCRC by
the lawyers, MacKechnie & Associates, highlighted anomalies in police
documentation, which appeared to support these claims. (…)
The Commission did not consider the
documentary anomalies to be sinister: while some of the allegations made in
the submissions were based upon information said to have been provided by the
Golfer, others were based purely on perceived irregularities in the recorded
chain of evidence. The Commission’s approach to the latter was that in any
police enquiry, let alone one as large scale and complex as the present one,
human error is inevitable. Although apparent omissions, inconsistencies or
mistakes in productions records may, after a long period of time, appear
difficult to explain, or even suspicious, in the Commission’s view they do not,
in themselves, support allegations of impropriety against those involved in the
investigation.
The police will be
relieved by the report’s conclusions. That relief won’t be shared by the Crown
Office, which the SCCRC has left with some important questions to answer. (…)
Megrahi himself
Before referring
Megrahi’s conviction to the appeal court, the SCCRC had to be satisfied that,
regardless of the weaknesses in the Crown case, there was not overwhelming
evidence of his guilt.
In practice this meant exploring the
issues that would have been raised during cross-examination, if he had opted to
give evidence.
These included his relationship with the
JSO, his use of a false passport, large payments into his Swiss bank account
and lies he had told in a US television interview. The Commission conducted
lengthy interviews with Megrahi and studied 37 of his precognition statements.
The report says: while at no time did the applicant admit
that he was a “member” of [the JSO], in the Commission’s view he was so closely
associated with it as to amount to the same thing … It is important to bear in
mind in any assessment of the applicant’s accounts that each of them was given
in English rather than in his native tongue. It is obvious … that on occasions
the applicant had difficulty expressing himself clearly. Caution is therefore
required in analysing his accounts … On the other hand, the applicant speaks
English relatively well, having previously studied the subject in Cardiff, and
he did not request the assistance of an interpreter at any stage in his
interview with the Commission. In these circumstances the Commission does not
consider the inconsistencies in his accounts are merely the result of
communication difficulties … In particular, the Commission believes that there
was a real risk that the trial court would have viewed his explanations for his
movements on 20 and 21 December 1988, and his use of the [false] Abdusamad
passport on that occasion, as weak or unconvincing.
It concluded: The Commission has also considered whether, notwithstanding its
conclusion that a miscarriage of justice may have occurred, the entirety of the
evidence considered by it points irrefutably to the applicant’s guilt. The
Commission’s conclusion is that it does not.
Megrahi insists that he
had nothing to hide from the SCCRC and that the inconsistencies in his accounts
are all innocent. While he disputes some of its conclusions he has made clear
that he is happy for them to be made public.
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