Tuesday, 3 September 2013

Eyebrows raised as Crown orders Police Scotland to stop investigating Crown over Lockerbie

[This is the headline over an article just published on the website of Scottish lawyers’ magazine The Firm.  It reads as follows:]

Questions about the impartiality of the Crown have been raised by the Justice for Megrahi Committee (JFM) after the lead officer investigating was informed by the Crown office that three of the eight allegations that the JFM asked the Dumfries and Galloway police to investigate should not be pursued.

In the aftermath of the calls for an inquiry into Crown Agent Norman MacFadyen, the Justice for Megrahi Committee asked for the Dumfries and Galloway Police to launch a criminal investigation into what happened in the aftermath of that fateful night over the skies of Lockerbie. (See the FIRM’s previous articles here and here).

The JFM raised eight allegations of criminal misconduct against previous members of the Crown Office and the Dumfries and Galloway Police Force. The organization claims that this was necessary in order to ensure that each department of the criminal justice system had been given an opportunity to answer ‘questions about their integrity’ in the prosecution of Abdelbaset Ali Al-Megrahi for causing Pan Am flight 103 to explode over Lockerbie, Scotland killing 270 people.

Last month members of the committee gave witness testimony to Pat Shearer, the former Chief Constable of the former Dumfries and Galloway Police, and current Deputy Chief Constable of the newly formed Police Scotland. Committee member Professor Robert Black QC told the FIRM that Shearer had informed the members that he had “been instructed not to investigate these allegations” as they might “impede the on-going investigation into other Libyans responsible for the Lockerbie disaster.”

Two of the charges that the JFM committee lodged involve criminal allegations of perjury and attempting to pervert the course of justice by members of the prosecutorial team and the Dumfries and Galloway police force. The news that two of the most serious allegations would not be investigated was passed on by Deputy Chief Constable Pat Shearer.  Professor Black QC, who was present at the meeting with DCC Shearer, added that he was confused at how an investigation could have impeded any additional on-going inquiries:

“These allegations related to the timer fragment. The prosecutorial team hid from the defence the full forensic scientist’s report into the metal found in the timer fragment. They used a phrase from the actually submitted report: “similar in all respects” to describe the timer fragment. “In fact, the forensic scientist’s report stated that the timer fragment found was “different in a metallurgical sense”.

“We submitted in our allegations that members of the investigating team passed this information on knowing it to be false and the Crown, also aware that it was false, used it anyway.”

“I just don’t understand how seeking evidence against other Libyans with complicity in the Lockerbie bombing would ever result in a connection between the obstruction of justice and the perjury charges,” Professor Black QC added.

In the Lockerbie trial, evidence was led that stated that the timer fragment was of the kind unique to the types of timers imported into Libya at the time, something author John Ashton attempted to debunk in his book on the Lockerbie disaster.

Professor Black QC also hinted that further legal action may be forthcoming if the Crown does not accept that there is a case to answer on the remaining charges and halts investigations into further allegations. “If we have to go down that road, then we will consider Judicial Review”.

This leaves the JFM Committee no closer in its quest of forcing Justice Secretary Kenny MacAskill to exercise his powers under sections 1 and 28 of the 2005 Inquiries Act, which enable him to appoint a body independent of previous Lockerbie/Zeist investigatory bodies to look into their allegations.

However, it does raise significant questions about how the Crown handle investigations involving criminal allegations lodged against people who work within the Crown office and whether or not there current measures are sufficient and transparent in an open and democratic society.

Today, the FIRM made inquiries to the COPFS about the procedures involved in investigating “in-house” members of staff. The COPFS referred the FIRM to a Scottish government website which outlines procedures in two separate annexes (pp. 5-7 of the previous link).

If the Crown has instructed Police Scotland to stop investigating a former or current law official before the police can establish sufficiency of evidence, then it appears to have not followed these guidelines. One interpretation suggests that the Crown cannot instruct Police on the matter being investigated once the complaint has been made and the Crown cannot be involved with the decision to act on allegations against former or current members of the Crown Office staff until the police have made their report about sufficiency of evidence to the COPFS.

Kevin Bell, Communications Officer for the COPFS, added:  “The allegations made by JFM are being considered by DCC Shearer in accordance with due process and it would be inappropriate to offer further comment at this stage.”

The FIRM’s Archive on the Pan Am disaster can be found here.

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