Deep scepticism about ethics and legality of Gauci payments

[The Scotsman today carries a letter from Ian Johnstone in response to yesterday’s article in which a lead Lockerbie investigator claimed that the payments to the Gauci brothers were “absolutely above board”. It reads as follows:]

Whatever contentions are made about the “correctness” of paying the Gauci brothers in recognition of their witness ­testimony in the conviction of Abdelbaset Ali Mohmed al-Megrahi for the Lockerbie atrocity (your report, 25 November) there remains deep scepticism about the ethics and UK legality of such conduct.

The importation of United States legal practices into aspects of what was essentially a Scottish criminal case at Camp Zeist in the Netherlands is questionable from the outset.

Practices such as plea bargaining and witness testimony payment, which occur, though not straightforwardly, in US legal processes, are subject to much circumspection of legal proceedings in Scotland.

The technicalities of payments to the Maltese brothers – as to whether these complied with proper legal standards and did not breach bribery codes of conduct, or otherwise – will stay in a fine balance of ethical observation probably until a number of other answers are provided for questions relating to contentious issues about the Lockerbie trial.

A prominent Austrian philosopher, Hans Koechler, who was appointed as one of five international observers at the trial by then United Nations Secretary General Kofi Annan, is well documented in querying the US Justice Department supervisory role in the Scottish prosecution team.

Mr Koechler said it was his opinion that there seemed to be considerable political influence on the judges and the verdict.

It was, and still is, a view shared by many people who are not so disposed to issue a clean sheet to the Lockerbie trial and verdict.

[I submitted a letter in the following terms to The Scotsman which the newspaper has not run, wisely, in the light of Mr Johnstone’s much better one:]

In your report “Lockerbie reward payouts ‘above board’” (25 November) lead Lockerbie investigator Tom McCulloch states that the payments to two Maltese witnesses were “absolutely above board”. They were not.

Following his newspaper’s gaining access to a document detailing Scottish investigators’ dealings with the Maltese witnesses, a journalist asked me the following questions:

1.      Is it legal for investigators to take this sort of role in relation to witnesses?

2.      Can witnesses be paid in relation to evidence given in a criminal trial under Scottish law?

3.      What is your opinion about the practice?

4.      I would also like your comment on the subtle implications in the passage [from the document] I am quoting above.

Here are my answers which, I believe, set out the true position in Scots law:

1. It is not today actually illegal.  It once was, and would lead to the witness being barred from giving evidence in court. Today, it is a practice that is frowned upon and is a matter that should always be disclosed to the defence since it is a factor that will affect the court's assessment of the credibility of the witness's evidence.  It is not the actual payment after the trial that is important, it's the fact that before the trial he was enquiring of the investigating authorities about the possibility of payment.  That is a matter that the prosecution (the police in Scotland are the agents of the prosecution) have a duty to disclose to the defence. They did not do so.  This is just one of the many instances of material helpful to the defence being improperly withheld.

2. It is not illegal to pay witnesses after the trial is over. But it is something that should never be discussed with a witness before or during the trial.  If a witness raises the issue with the police or the prosecution, the only proper response is to say that this is a matter that simply cannot be discussed. While the investigating authorities in this case may not actually have promised payment, it is clear that the matter was discussed as a possibility. That was improper.  As soon as the issue was raised, the investigators should have stated that this was a matter that they simply could not discuss.

3. It is a dangerous and disreputable practice. Where it occurs, it must be disclosed to the defence. In this case, the authorities did everything in their power to conceal it, including "mislaying" Harry Bell's diary until it was eventually unearthed by the SCCRC in the course of their investigation of the Megrahi conviction.

4. It is a quite shocking document. It refers to the witness's "loyalty". The duty of the police and prosecution is not to secure or to seek a witness's loyalty to the prosecution case, but to try to secure that he tells the truth, the whole truth and nothing but the truth, without fear or favour.

Equally shocking is this passage: "the witnesses, who are the subject of this report, will maintain their current position and not seek to make adverse comment regarding any perceived lack of recognition of their position. Nor is it anticipated would they ever seek to highlight any remuneration received." It is no part of an investigator's or prosecutor's function to seek to secure that a witness maintains his current position. To try to influence a witness, or secure benefits for him, to achieve this result is grossly improper. The passage also recognises that it is important that the remuneration arrangement should not be "highlighted". This manifests a clear, and correct, understanding that the arrangement is not one that would meet with legal or public approbation.