The Damned Crown

[This is the headline over an article by Justice for Megrahi’s secretary, Robert Forrester, published today (with an accompanying news item) on the website of Scottish lawyers’ magazine The Firm.  It reads in part:] 

Last week we were treated to an embarrassment of riches courtesy of Number 25 Chambers Street. Firstly, we see Scotland’s Lord Advocate, Frank Mulholland, jetting off to Libya accompanied by his minder, Director of the FBI, Robert Mueller, in an attempt to gain some small advantage in the media war over the Zeist conviction of Abdelbaset al-Megrahi. And, secondly, we had this from a Crown Office representative: “Even if the evidence about Heathrow had been heard by the trial court, it would not have reached a different verdict. The Crown was in the process of robustly defending the investigation and conviction when Mr Megrahi chose to abandon his second appeal.” 

In this one brief, devastating statement from the Crown, any quaint notion that the public may have that the Crown serves the interests of justice rather than the aggressive securing of convictions, no matter what contrary evidence might stand in its way, is dispelled. 

Irrespective of the outcome of the first appeal, where the Heathrow break in was raised, to say that the trial court “would not have reached a different verdict” had it been aware of the evidence at the time is to grossly prejudge the outcome of the trial and in no way legitimises the withholding of evidence from the defence. In short, it is a travesty of justice.

On top of the recent accusations of the withholding of evidence by the Crown to the defence (regarding Crown witness Abdul Majid Giaka) levelled at Colin Boyd, Lord Advocate at the time of the Zeist trial, the above Crown Office statement is a response to yet further information concerning the Crown’s withholding of evidence. According to the Chief Constable of Dumfries and Galloway Constabulary, police did not submit evidence to the Crown about a break in to Heathrow airside in the vicinity of the loading bay for flight 103, which took place a matter of hours prior to the departure of the plane, until 1999 (a decade after the event was reported by Heathrow security guard Ray Manly and a year prior to the commencement of the Zeist trial). Moreover, the Crown failed to avail the defence team of the occurrence. It was only after the conviction of Mr al-Megrahi for the crime that the break in became public knowledge, when Mr Manly approached the defence team with his evidence. 

 

The Zeist trial would likely not have materialised at all had it not been for the CIA evidence garnered from Giaka. Elements of which evidence the Crown attempted to withhold from the defence. His evidence was largely dismissed by the court as being that of a fantasist. The baton of star witness then passed to Toni Gauci, a man whose evidence is riddled with inconsistency and which also seems to have come on the back of a tempting $2,000,000 carrot (plus $1,000,000 for his brother Paul) provided by the US Department of Justice. Even the key material evidence, in the form of a shard of PCB, looks highly likely to have been a plant.

Many have long maintained, with considerable justification, that the Zeist judgement of an invisible bomb suitcase operated by a simple countdown timing trigger being transferred from Malta to Frankfurt then on to Heathrow is a complete flight of overly active imaginations. There are indeed areas of the judgement, particularly surrounding Mr Gauci, that give the distinct impression that under Scots Law the burden of proof is on the defence and that the accused is guilty until proven innocent. The attitude of the Crown as displayed in this statement supports this view. 

 

What is being said is that it doesn’t matter whether or not the trial court was in possession of the evidence about the Heathrow break in since, in our estimation, al-Megrahi would still have been convicted. On the basis of what? The first appeal? One cannot prejudge the outcome of a trial of fact by the judgement of an appeal which is circumscribed by quite different parameters. Quite apart from the fact that by withholding evidence the Crown is brazenly flouting the interests of justice and is quite probably a criminal offence in itself, it demonstrates a deeply unhealthy bias on the part of the Crown, and suggests the corruption of the trial court. In short, this revealing statement speaks volumes on the attitude of the Crown to this case. It is a national outrage that the Crown should be attempting to support such practices and only acts to substantiate the increasingly commonly held view that Zeist was, what is known in the trade as, a stitch up. 

The bereaved attended Zeist innocently thinking that the Crown was serving the interests of justice. By the end of the trial many had concluded that they had been duped and that the Crown was simply aiming to produce a conviction at any cost. It now looks like they were right.

How has this come about? The now common practice of successive Scottish governments of promoting Crown Office insiders lacking wider experience and practice within the justice system surely does not help. This can only promote the type of canteen culture that Michael Mansfield QC has said afflicts the forensic services, whereby they have come to see themselves as existing to secure convictions despite what contrary evidence may be indicating. Such a practice, given that the Crown so obviously no longer serves the interests of justice, can only act to produce further miscarriages of justice. Here the Crown is saying that it doesn’t matter that we withheld evidence, you ought all to be happy that we secured a conviction against the odds that we, fortunately, were able to manipulate in our favour. And, by the way, if you want to blame anyone, blame Mr al-Megrahi for dropping his second appeal when he didn’t have to. So, it is all the fault of a man convicted on highly dubious evidence, who, upon receiving a visit from the Cabinet secretary for Justice and a delegation of Libyan representatives, suddenly and quite unexpectedly gives up hope of clearing is name in order to guarantee his repatriation and see out his last days in the company of his family. How convenient that he should drop an appeal which looked very likely to result in the quashing of his conviction. The bereaved must also be delighted to hear that the Crown is handing responsibility for the interests of justice over to a convicted mass murderer. 

 

All governments need professional advisers, without them, the work of government would come to a grinding halt. It, therefore, goes without saying that governments must invest a considerable degree of trust in these advisers. However, the current Scottish Government is going well beyond the basic and necessary trust in its legal advisers, the Lord Advocate and the Crown Office, when it says that they, the government, “do not doubt the safety of Mr al-Megrahi’s conviction.” This is blind faith. What is more, the government, at every turn, obliges the wishes of the Crown by legislating to make any formal questioning of the Zeist verdict as difficult as possible. Who was behind the formulation of the 2009 Order, which, although it was claimed that its purpose was to facilitate the publication of the SCCRC’s statement of reasons for Mr al-Megrahi’s second appeal, had the effect, due to its wording, of doing precisely the opposite? Who was behind the Criminal Cases (Punishment and Review) (Scotland) Bill, Part 2, which, again because of its wording, was ostensibly designed to do precisely the same: block the publication of the SCCRC’s statement of reasons, and which crashed and burned with the publication of the document by The Herald newspaper, to the blushes of Chambers Street? Who was behind the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill, section 7, emergency legislation passed when there was no emergency and which acts to allow the High Court of Justiciary to reject applications for appeal which question its own judgements? What we are witnessing here is a case of the tail wagging the dog. The Scottish government must stand up for those who elect it and question the advice it is being fed by the Crown. It is not simply that a petition is sitting open before the Justice Committee supported by 1,646 signatories garnered in a period of two weeks active online. 

With this statement from the Crown, it is clear that the institution has now most publicly and openly damned itself. The government must act if anything is ever to be salvaged of the Scottish criminal justice system. 

Perhaps before swanning off to Tripoli at the taxpayer’s expense in order to try to notch up points in the publicity war, Mr Mulholland should bear in mind that thus far the protestations of Abdel-Jalil have produced zero. Likewise the Scottish delegation that interviewed Moussa Koussa produced an own-goal when he published a statement denying Libyan involvement in Lockerbie after being released to his freedom and bank accounts to live in Qatar. And again, the efforts of UK lawyer Jason McCue to get the Libyan rebels to sign up to Libyan guilt for Lockerbie also produced a large, fat, round zero, even with the carrot of access to the nation’s frozen overseas assets being dangled in front of their noses. The attitude of the Crown being as it is, if the Lord Advocate and his associates at the FBI actually do find anything incriminating in Libya, it is plain that, whatever it is, will have to be put under an electron microscope by an independent forensic lab in a neutral country.

There are now no longer any excuses. The government is fully aware that precedent exists for opening inquiries into judicial decisions. Can of worms or no can of worms, it must be opened, and, at this stage in the proceedings, the ball is firmly in the court of the Scottish Government to resolve this issue. The Crown Office can clearly no longer be trusted in this matter. For how long is the Scottish Government going to look on as the Crown continues to fight this embarrassing rear guard action after what is tantamount to a self confession to its own gross malpractice?