Tuesday, 6 November 2012

Who is accused of perverting the course of justice?

In the (redacted) version of Justice for Megrahi’s letter alleging criminal misconduct in the Lockerbie investigation and prosecution that was released to the press on 23 October 2012, allegation no 1 reads as follows:

“1.  On 22 August 2000 the Lord Advocate, Colin Boyd QC, communicated to the judges of the Scottish Court in the Netherlands information about the contents of CIA cables relating to the Crown witness Abdul Majid Giaka that was known to members of the prosecution team [A B and C D] who had scrutinised the cables, to be false. The Lord Advocate did so after consulting these members of the prosecution team. It is submitted that this constituted an attempt to pervert the course of justice.”

A number of journalists have interpreted this paragraph as embodying an allegation that Colin Boyd attempted to pervert the course of justice. The latest of these is Kenneth Roy in an article in today's edition the Scottish Review headlined A High Court judge and an allegation of criminality.  This raises concerns about the standard of English comprehension amongst journalists, because the paragraph makes no such allegation -- indeed was very carefully drafted in order to avoid it. What the paragraph alleges is that two members of the prosecution team, A B and C D,  supplied to Colin Boyd information about the CIA cables which A B and C D knew to be false (because they had scrutinised the cables) and which they knew he was going to, and did, communicate to the court.  That is the perversion of the course of justice that is alleged. 

I am disappointed when journalists attempt to explain or excuse their flagrant misinterpretation of a text by reference to its -- non-existent -- ambiguity. The paragraph quite simply does not say that Colin Boyd perverted the course of justice. To represent that it does is an error on the part of the reader, not the writer.


  1. Hmm - I'm afraid I read it the same way as Kenneth Roy, but then I'm not a professional journalist. As it is, it's at the very least unclear. If you had put "It is submitted that this constituted an attempt by A B and C D to pervert the course of justice" then there could have been no possibility of misinterpretation. Did you mean to leave a coy (but deniable) suggestion that Mr Boyd is not entirely squeaky clean in this?

  2. It seems to me that nobody knows whether Mr. Boyd knew or not. However, on the face of it, he would seem to have plausible deniability. The fact that he had to ask the unnamed lawyer or lawyers for the information suggests he may not have known.

    This would surely be one of the things that an independent investigation would investigate.

    And I'm sorry but to me it is obvious that Mr. Boyd is not accused of anything in that passage. The fact that it doesn't explicitly declare him to be squeaky-clean is neither here nor there. The narrative states that two other people told him information they knew to be false, knowing that he was going to convey it to the court. I am not a lawyer, but I can understand that perfectly. The offence was committed by the unnamed people, and presumably that is why their names were redacted and Mr. Boyd's wasn't. Mr. Boyd was merely the conduit of the information, and may well have been an unwitting conduit.

  3. Dear Commentators,

    With respect. I am not a lawyer, my understanding of it and its argot I have picked up over the years from the likes of Robert Black, Len Murray and Jock Thomson. I am, however, an English language lecturer, exam marker and proofer of almost 40 years standing. I have a 90 to 100% pass rate with candidates I have been responsible for teaching towards the UCLES Proficiency Examination (equivalent to a 9 score in the IELTS). In other words, commensurate with what would be regarded as an English level of the highest order expected from a particularly well educated native wishing to enter any university in the UK. The paragraph in question conforms precisely to the interpretation explained by Professor Black. If any of my students had made the kind of blunder these native journalists have made, I would never have recommended them for the exam. Furthermore. I should point out that following his correspondence with myself, Mr Roy decided to write to professor Black on the subject without waiting for a response from myself. I took this to mean that he wished to deal with the matter at a more erudite level and that my own services had become redundant. Clearly neither the Crown Office not Lord Boyd are afflicted with the degree of illiteracy apparently so common amongst today's 'respected' members of the fourth estate.

    Robert Forrester (Secretary, JFM).

  4. @quincey

    I'm afraid you don't convince me of your credentials, Mr. Sentence Without Verb. You should take heed of Sir Ernest Gower's 'Plain Words'. It's easy to reconstruct a sentence to remove ambiguity, if ambiguity is something you wish to avoid.


  5. I take a more simple view. Boyd was Lord Advocate and was giving assurances to judges in a court of law. It really was his job to check his statements were absolutely true. If it turns out otherwise I'm afraid he has no one to blame but himself and I would say he should absolutely carry the can. If the Lord Advocate, of all people, doesn't understand that what he says in a court of law must be absolutely true then what hope for anyone else?

  6. "It really was his job to check his statements"

    Is that really practicable? All of us in our jobs must take much of what we hear on trust as it simply isn't possible to check everything. But that said, I tend to agree. This was a very grave matter and if Boyd didn't smell a rat around the prosecution case then he is either very thick or was colluding with the prosecution.

  7. It's not impossible he knew perfectly well how damning the unredacted cables were, but made a point of asking the other lawyer(s) in court to supply the information precisely in order to get into the court transcript that someone else had provided the false assurances.

    Plausible deniability and all that. Wouldn't surprise me at all. Might be impossible to prove it though.

  8. Oh, and Boyd WAS the prosecution.

    I believe the unredacted cables were only seen by a very small number of people under controlled circumstances. Nobody quite knows why the CIA agreed to show them to the prosecution, but it may have been a response to some pressure from the relatives for more openness. Boyd was presumably not one of the few people who saw them. However, I find it hard to believe he wasn't fully briefed by those who did see them.

    The more I think about it, the more I suspect that the exchange in court, where he made a point of checking with someone else, was to ensure that the buck could be passed down the line when the Law Society came calling. Being as the Law Society doesn't look kindly on lawyers who give the court information they know to be false.

    But the Law Society didn't come calling. I wonder why not?

    I heard a rumour that it was one of the prosecution lawyers, horrified about what his own side were doing, who tipped off his colleages appearing for the defence that they really, really ought to push hard for sight of the unredacted cables.

    That guy deserves a medal, if that story is true. But it also suggests that knowledge of how damning the full text of the cables was was actually quite widespread within the prosecution team.

  9. I've heard that story, too, Rolfe and believe it to be true.

    Another interesting fact is that, very shortly after the close of the Lockerbie trial and appeal, when the truth about the CIA cables was well known, both A B and C D were given significant promotions within the Crown Office by Lord Advocate Boyd. Scottish criminal law, perhaps regrettably, does not recognise the concept of being an accessory after the fact.

  10. By the time it all got to Camp Zeist, I think it's hard to tell how many people realised that a couple of innocents were being set up, as opposed to those who genuinely thought they'd done it but that the evidence had to be sexed up to be strong enough to get a conviction.

    The full text of the cables makes it pretty clear that Majid Giaka was simply telling the CIA what the CIA wanted him to tell them, for money/favours (actually, entry into the US witness protection scheme, which gave him and his wife and baby a whole new identity and life in the USA). It's absolutely blatant. It's a clear case of false witness being solicited in order to support convictions against both Megrahi and Fhimah.

    I think that, as so often with this case, it all comes down to whether one believes the bomb started its journey in Malta or not. If you believe that, then somebody who was at the airport at Malta that morning almost certainly had something to do with it. Megrahi was at the airport that morning, travelling on a passport in a false name. That is hellish suspicious on the face of it and it seems they couldn't find anybody else suspicious there at all, and they seem to have looked pretty hard. Of course Megrahi wasn't shown to have done anything but catch his flight, but when you're desperate, and somebody must have done it, I imagine this rather shady Libyan spiv with the false passport looks like manna from heaven. So, perhaps it's OK to fabricate evidence against him by bribing Giaka to tell a load of fairy-stories, because somebiody did it, and he's the only possible somebody in sight.

    If on the other hand you have figured out that the bomb started its journey at Heathrow, then you would know by that token that Megrahi (and Fhimah) were in fact innocent.

    In my own personal opinion, at least some people in the prosecution team figured out, before the trial started, that the bomb came from Heathrow.

    Go figure.

  11. Vronsky said...
    >>[Jo G] "It really was his job to check his statements"

    > Is that really practicable? All of us in our jobs must take much of what we hear on trust as it simply isn't possible to check everything.

    Giaka's statement was orders of magnitudes more incriminating for Megrahi than anything else brought to court.

    Believing in Giaka would mean believing that Megrahi and Fhimah was guilty way beyond reasonable doubt.

    And if anything would allow us to conclude that Giaka's statements had to be false, how could we keep up any belief in Megrahi's and Fhimah's guilt? Should we then still allow room for the though, that we see the amazing coincidence that Giaki's statements were pure fabrications, but hey, the accused happened to still be guilty?

    So, there was every reason for scrutinizing every possible source that would allow us to get closer to a conclusion.

    The prosecution team had full access to the cables.

    But somehow completely wrong statements were presented to court.

    Colin Boyd said to the court:
    “there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid [Giaka] on these matters.”

    Hmmm. History - including SCCRC and even the trial judges - had another conclusion.

    But nobody lied to anyone? They honestly read the cables and just reached the wrong conclusion?

    In Denmark we have an expression: "More stupid than the police will accept."

    - - -

    What did he do, Colin Boyd, at, or after the trial? Made a statement that he'd look into this extremely serious slip in the prosecution's duties?

    In 2012 he is, in numerous sources, quoted for saying:

    "I reject the suggestion that I or anyone else in the prosecution team failed to disclose material evidence to the defence."

    How this can allow for any other conclusion that Colin Boyd is a liar is beyond me.

  12. He's a lawyer, SM. "It all depends on what your definition of is is."

    If we accept that he's talking about the Giaka episode, then of course neither he nor anyone else in the prosecution failed to disclose material evidence to the defence. The judges ordered the material to be handed over despite their lies, so he's technically correct in what he says.

    Of course, that's not what the letter accuses the two unnamed lawyers of doing. The letter accuses them of communicating information to the court that they knew to be false. Completely different and we take note that he didn't deny that.

    If of course we decide he was talking generally, not just confining himself to the Giaka episode, well he's going to say that isn't he, because no other example of them attempting to conceal material from the defence as as yet been proven.