Divergent views on Colin Boyd as Lord Advocate

[The following are excerpts from a report published today in The Herald:]

Jack McConnell tactlessly told his elected colleagues in the Scottish cabinet that he valued the advice of an unelected minister more than theirs.

The then Labour First Minister somewhat ungraciously rated the input from the Lord Advocate, Lord Boyd, above that of his fellow politicians.

The admission came at the Scottish cabinet of October 4, 2006, when Lord Boyd announced he was standing down after six years in post as “the longest serving Lord Advocate for more than a century”.

He said that the trial of the Lockerbie bombing suspects in 2000 and 2001 at the special court in the Netherlands had been a major achievement for the Scottish justice system.

Lord Boyd led the prosecution of the two Libyans accused of the 1988 atrocity. (...)

Mr McConnelll said it was “impossible to overstate the importance” of Lord Boyd’s role in the Lockerbie trial and conviction, and also saluted his court reforms.

“There was no one whose judgment as a Cabinet colleague he had valued more.”

[RB: Lockerbie campaigners did not share Jack McConnell's views about Colin Boyd. Here are some comments published on the occasion of his resignation:]

"Colin Boyd tried to balance what was known to his prosecution team of the famous ‘CIA telegrams’ in the court at Zeist, in the knowledge that the ‘star’ prosecution witness (Giaca) was also a worthless CIA quisling. His struggles to meet his clear duty to truth and justice and fair dealing with the court and the defence, made a ‘rabbit in the headlights’ look cool and sagacious. Meantime his predecessor in office had made the wise choice of lolloping off to the safety of a secure burrow in the nick of time." Dr Jim Swire

"I believe that history will view Colin Boyd’s reign as Lord Advocate as a shameful period where the independence of the Lord Advocate was sacrificed to the will of his political masters. 

"Two cases dominated his tenure – the Lockerbie Bombing and the Shirley McKie case. In both cases he stands accused of weakness and vacillation in the face of political pressure and a complete failure to act as, ‘the watchdog for justice’ – the role assigned to him by Lord McCluskey. 

"His dramatic overnight resignation in October 2006 has been seen by some as the captain jumping ship to save his skin. I hope that this accusation will be thoroughly tested during the planned judicial enquiry into my daughter’s case and in any future enquiry into the Lockerbie disaster." Iain A J McKie

[RB: Further, largely critical, accounts of Colin Boyd's performance in the Lockerbie case can be found here, here, and here.]

Thirteen years of Crown obstruction and obfuscation

This blog is thirteen years old today.

I started the blog in 2007 just after the Scottish Criminal Cases Review Commission had referred Abdelbaset Megrahi’s conviction back to the High Court of Justiciary for a further appeal. It seemed to me that a commentary on the appeal process would be of some value. My expectation was that, even allowing for the law’s notorious delays, the blog would not be needed for longer than two years -- or two-and-a-half at the outside. Foolishly, of course, I gravely underestimated the Crown Office’s ingenuity in delaying proceedings (with the connivance or condonation of the appeal judges) and the obstructiveness of the then UK Government in the persons of the Foreign Secretary, David Miliband, and the Advocate General for Scotland, Lord Davidson of Glen Clova QC. The result was that the appeal hearing had only barely got into its stride when Megrahi’s illness led to his abandoning the appeal and being released on compassionate grounds in August 2009. So the Megrahi case lingers on, as does this blog. Perhaps the appeal resulting from the current SCCRC reference back to the High Court will enable the case and this blog to be decently buried. But don’t expect it to be anytime soon.

The first item to appear on this blog was the text of an article published by me in a legal journal: Lockerbie: A satisfactory process but a flawed result. What follows is the second item published in the blog on the same day.

The SCCRC Decision

On 28 June 2007 the Scottish Criminal Cases Review Commission referred Abdel Basset Al-Megrahi’s conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, to the Crown and to the High Court) extends to over 800 pages, accompanied by thirteen volumes of appendices. The Commission, in the published summary of its findings, rejected submissions on behalf of Megrahi to the effect that evidence led at the trial had been fabricated and that he had been inadequately represented by his then legal team, but went on to indicate that there were six grounds upon which it had concluded that a miscarriage of justice might have occurred. Strangely enough, however, only four of these grounds are enumerated in the summary. They are as follows:

“A number of the submissions made on behalf of the applicant challenged the reasonableness of the trial court's verdict, based on the legal test contained in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Commission rejected the vast majority of those submissions. However, in examining one of the grounds, the Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House, took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.

“New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in thearea of Sliema in which Mary's House is situated. In the Commission's view,taken together with Mr Gauci's evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant was in Malta.

“Additional evidence, not made available to the defence, which indicates that four days prior to the identification parade at which Mr Gauci picked out the applicant, he saw a photograph of the applicant in a magazine article linking him to the bombing. In the Commission's view evidence of Mr Gauci's exposure to this photograph in such close proximity to the parade undermines the reliability of his identification of the applicant at that time and at the trial itself.

“Other evidence, not made available to the defence, which the Commission believes may further undermine Mr Gauci's identification of the applicant as the purchaser and the trial court's finding as to the date of purchase.”

The implications for the verdict of guilty

The reasons given by the Commission for finding that a miscarriage of justice may have occurred in this case are not limited to the effect of new evidence which has become available since the date of the original trial and the non-disclosure by the police and prosecution of evidence helpful to the defence.    The prima facie miscarriage of justice identified by the Commission includes the trial court’s finding in fact on the evidence heard at the trial that the clothes which surrounded the bomb were purchased in Malta on 7 December 1988 and that Megrahi was the purchaser.  This was the very cornerstone of the Crown’s case against him.  If, as suggested by the Commission, that finding in fact had no reasonable basis in the evidence, then there is no legal justification whatsoever for his conviction by the trial court.

The implications for the Scottish criminal justice system

The present writer has always contended that no reasonable tribunal could have convicted Megrahi on the evidence led at the trial.  Here is just one example of the trial court’s idiosyncratic approach to the evidence.  Many more could be provided.

A vitally important issue was the date on which the goods that surrounded the bomb were purchased in a shop in Malta.  There were only two live possibilities:  7 December 1988, a date when Megrahi was proved to be on Malta and 23 November 1988 when he was not. In an attempt to establish just which of these dates was the correct one, the weather conditions in Sliema on these two days were explored. The shopkeeper’s evidence was that when the purchaser left his shop it was raining so heavily that his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi.  The unchallenged meteorological evidence led by the defence established that while it had rained on 23 November at the relevant time, it was unlikely that it had rained at all on 7 December; and if there had been any rain, it would have been at most a few drops, insufficient to wet the ground.  On this material, the judges found in fact that the clothes were purchased on 7 December.

On evidence as weak as this how was it possible for the trial court to find him guilty?  And how was it possible for the Criminal Appeal Court to fail to overturn that conviction?  The Criminal Appeal Court dismissed Megrahi’s appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court’s factual findings at all (though it is clear from their interventions during the Crown submissions in the appeal that at least some of the judges were only too well aware of how shaky certain crucial findings were and how contrary to the weight of the evidence).

It is submitted that at least part of the answer lies in the history of the Scottish legal and judicial system.  For centuries judges have accorded a specially privileged status to the Lord Advocate.  It has been unquestioningly accepted that, though a political appointee and the government’s (now the Scottish Executive’s) chief legal adviser, he (now, of course, she) would at all times, in his capacity as head of the prosecution system, act independently and without concern for political considerations and would always place the public interest in a fair trial above the narrow interest of the prosecution in gaining a conviction.  This judicial vision of the role of the Lord Advocate was reinforced by the fact that, until the Scottish Judicial Appointments Board commenced operations in 2002, all Scottish High Court Judges (and sheriffs) were nominated for appointment to the Bench by the Lord Advocate of the day.  This meant that, in all criminal proceedings, the presiding judge owed his position to the person (or one of his predecessors in office) who was ultimately responsible for bringing the case before him, and for its conduct while in his court.

The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism -- indeed casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction. To illustrate this in the context of the Lockerbie trial it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the United States under a witness protection programme.

Giaka’s evidence was ultimately found by the court to be utterly unworthy of belief. This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony. Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been immensely more difficult and perhaps impossible.

Yet the Crown strove valiantly to prevent the defence obtaining access to these cables.

At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC,  stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.

Mr Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid… On all of these matters, the learned Advocate Depute reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."

One of the judges, Lord Coulsfield, then intervened: "Does that include, Lord Advocate ... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"

The Lord Advocate replied:  “Well, I'm just checking with the counsel who made that...  there is nothing within the -- -- 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 on these matters."

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety.  Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

Beyond the Lockerbie trial, the failure of the Crown to place the public interest in a fair trial above the interest of the prosecution in obtaining convictions is illustrated by the extent to which the Lord Advocate has recently had to be dragged, kicking and screaming, through the Privy Council in London before making available to the defence material in the prosecution’s possession that no-one could conceivably deny was of relevance and assistance in the accused person’s defence: see Holland v HMA 2005 SCCR 417;  Sinclair v HMA 2005 SCCR 446. So much for the fairness of the trial being the Crown’s primary and predominant motivation!

“When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.” I Corinthians xiii.11. It is high time for all involved in the Scottish criminal justice system to put away childish things. All of us, judges included, are surely too old to believe any longer in fairy tales. Fairy tales can be convenient and comforting and can bolster our self esteem. But, as in the case of the belief that the Crown can uniformly be relied upon always to act selflessly in the public interest, they can be dangerous and, if acted upon, work terrible injustice.

It is submitted that the Lockerbie case demonstrates just how necessary it is, if public confidence is to be maintained, for the Scottish Executive to institute a high-powered, independent, investigation into all three aspects – investigation, prosecution and adjudication -- of the Scottish criminal justice system.

The Crown and the CIA

[This is the headline over an article authored by me that was published on this date in 2000 on TheLockerbieTrial.com website which Ian Ferguson and I ran during the period of the Zeist trial and first appeal. It reads as follows:]

When the trial resumed on Tuesday 22 August [2000], the defence teams complained to the Court that they had just learned the previous day that certain CIA cables relating to the Libyan defector Abdul Majid Giaka, which they had thought had been made available to both the prosecution and the defence only in a censored or redacted form, had in fact been seen by members of the prosecution team on 1 June 2000 in uncensored or unredacted form.  The defence contended that the principle of equality of arms enshrined in article 6 of the European Convention on Human Rights required that the defence should have similar access to this material.  The Crown opposed the defence's application.  They conceded that it is the duty of a Scottish prosecutor to supply to the defence any material available to the prosecution which advances the defence case or is relevant to a defence attack on the credibility of a prosecution witness. However, in the course of the Crown's lengthy submissions, it was stated by the Lord Advocate, Colin Boyd QC, that the deletions from the versions of the cables supplied to the defence related only to matters which were (a) irrelevant both to the facts in issue in the Lockerbie trial and to the credibility of the witness Majid Giaka or (b) related to sensitive matters of United States national security.  Indeed, it was for the purpose of ensuring that the Crown were in a position to fulfil their disclosure obligations that members of the Crown team inspected the unredacted cables on 1 June.  To quote the Lord Advocate:

"First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way.  Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid.  They also considered whether was anything which might bear upon the special defences which had been lodged and intimated in this case.

"On all of these matters, the learned at Advocate Depute reached the conclusion that there was nothing within the cables which bore on the Defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... 

"There is 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 Court was unimpressed by the arguments of the Lord Advocate and instructed him to use his best endeavours to secure the release by the CIA to the defence of the unredacted or uncensored cables. 

These cables were in due course made available to the defence, and on Tuesday 29 August various excerpts from them were read out in open court by defence counsel in an attempt to convince the judges that further CIA cables relating to Giaka should be made available to the defence, if necessary by means of a request by the Scottish Court at Camp Zeist to the appropriate Federal Court in the United States of America for an order compelling the CIA to disgorge the relevant material.  The Court, wishing to avoid the delays which would necessarily be caused by any recourse to the American courts, has instructed the Lord Advocate again to use his best endeavours to secure the release by the CIA of these additional cables.  Only if he is unsuccessful will the Scottish Court reluctantly consider the option of a formal request through the American courts. 

The previously blacked-out passages read out to the Court from the cables now in the hands of the defence indicated that, as at 1 September 1989 (more than eight months after the destruction of Pan Am 103), Giaka's CIA handlers were highly critical of him and of the lack of important information supplied by him.  He is described in the now-revealed portions of the cables as a man in the business of selling information for his own benefit; as someone who will never have the penetration of Libyan intelligence services that had been anticipated; as someone who had never been a true member of Libyan intelligence; and as someone whose CIA salary of $1000 per month should be cut off if he supplied no significant information.  It seems to be the natural inference from this that, by 1 September 1989, Giaka had still not informed his CIA masters that his Libyan colleagues in Malta had been responsible for the Lockerbie bombing: if he had done so, it is difficult to see how these criticisms of his value and of the worth of the information supplied by him could conceivably been made. 

But apart altogether from that, if the excerpts read out in court on Tuesday 29 August and summarised in the preceding paragraph accurately reflect passages from the cables which had been blacked out from the versions originally supplied to the defence, it is somewhat difficult to appreciate how it could possibly have been accurate or justifiable for the Crown to state to the Court on Tuesday 22 August that the redacted or censored portions within the documents contained nothing "which could in any way impinge on the credibility of Mr Majid."

Criminality allegations submitted to Justice Secretary

[What follows is excerpted from a report published on the website of The Scotsman on this date in 2012:]

Lockerbie campaigners have lodged “fresh allegations” with justice secretary Kenny MacAskill about the conduct of the Scottish authorities at the trial 11 years ago.

Demands for a fresh inquiry into the bombing of the Pan Am jet in 1988 will come before MSPs on Holyrood’s justice committee today. The Justice for Megrahi (JfM) campaign has compared the “cover-up” surrounding the trial to the recent Hillsborough revelations. But the claims were branded “false and deliberately misleading” by Scotland’s Crown Office yesterday.

In a submission to the committee, the JfM group states: “The outcome of the Hillsborough inquiry has undoubtedly shone a light on the inner workings of a justice system that purported to keep its citizens safe and secure.

“Now we can see that protection of the system and the wrongdoers within it took precedence over protection of the individual citizen. If Hillsborough was England’s shame, then Lockerbie is Scotland’s, and much of the indifference and arrogance identified within the former can be identified in the latter.”

The campaign submitted a letter to Mr MacAskill which lodges “serious formal allegations” relating to the conduct of the investigation and the Kamp van Zeist trial.

[RB: JfM’s letter to Kenny MacAskill, with names of individuals removed, reads as follows:]

The Committee of Justice for Megrahi hereby formally lodge with you complaints alleging criminal wrongdoing in the investigation and prosecution of Abdelbaset al-Megrahi and Lamin Fhimah for the murder of 270 people in the downing of Pan Am 103 on 21 December 1988.

These complaints are directed against the persons and bodies named below whom, for the reasons given, we believe may be guilty of the criminal offences specified.

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.

2.  Members of the Lockerbie prosecution team, including but not limited to [C D], devised and presented or allowed to be presented to the trial court a scenario regarding the placement of items in luggage container AVE4041 which was known to be false, in order to obfuscate and conceal compelling evidence that the bomb suitcase was introduced by a terrorist infiltration at Heathrow airport. It is submitted that this constituted an attempt to pervert the course of justice.

3.  Dumfries and Galloway Police, and those individuals employed by that force responsible for the recording, prioritising and submission to the Crown Office of evidence gathered in the investigation into the downing of Pan Am Flight 103, and the Crown Office, and those individuals in that organisation responsible for the analysis of said evidence and identifying what material required to be passed on to those acting for Megrahi and Fhimah, concealed the witness statement relating to the break-in to Heathrow airside giving access to the luggage loading shed used by Pan Am 103 in the early hours of 21st December 1988 which was provided by Heathrow Security Officer Raymond Manly to the Metropolitan Police shortly after Mr Manly’s discovery of the break-in. It is submitted that the concealment of this witness statement, which was or ought to have been known to Dumfries and Galloway Police and the Crown Office to be of the highest possible significance to the defence, constituted an attempt to pervert the course of justice.

4.  [In the course of his testimony at Camp Zeist, witness E F] told the Court that the materials and tracking analysis of fragment PT/35b, the sliver of printed circuit board said to have originated from a circuit board contained in one of the 20 MST-13 digital timer instruments supplied by MEBO AG to Libya (the boards for all these timers having been custom-made for MEBO by Thuring AG), were “similar in all respects” to the control samples of MST-13 circuit boards. [E F] consistently used this form of words to describe analyses of items which were identical or of common origin. This statement was false. While the tracking pattern was indeed identical, [E F] was aware that the coating on the circuitry of the control boards was the standard alloy of 70% tin and 30% lead, while the coating on the circuitry of fragment PT/35b (most unusually) lacked the 30% lead content. It is submitted that his statement to the Court was a deliberate falsehood designed to conceal a significant and material difference between the evidential fragment and the control items, and thus constituted both perjury and an attempt to pervert the course of justice.

5.  The Lockerbie investigation, and in particular [police officer G H], knew by 1990 that the coating on the circuitry of fragment PT/35b was composed of pure tin, and that this composition was highly unusual, being described as “by far the most interesting feature” of the fragment by all the experts who were consulted, “without exception”. By early 1992 [G H]  and those in the Crown Office to whom he reported also knew that the metallurgy testing on the control MST-13 circuit boards showed the circuitry on these boards to be coated with the standard 70% tin / 30% lead alloy. [G H] and those in the Crown Office to whom he reported

either failed to inquire with the manufacturer Thuring AG whether they had supplied any MST-13 timer boards with the unusual lead-free coating, or did make such inquiries and failed to disclose the results of these inquiries to the defence. It was discovered by the defence team in 2008 that Thuring AG did not manufacture printed circuit boards with a lead-free coating, and indeed lacked the manufacturing capacity to do so. If [G H] and/or those in the Crown Office to whom he reported failed to make the relevant inquiries with Thuring AG, it is submitted that this omission was grossly negligent. If [G H] and/or those in the Crown Office to whom he reported made such inquiries and failed to disclose the results to the defence, it is submitted that this failure constitutes an attempt to pervert the course of justice.

6.  From our assessment of the ‘SCCRC Statement of Reasons’, relating to its referral of Mr Megrahi’s case to the Court of Criminal Appeal in 2007, and the ‘Grounds of Appeal 1 and 2' documents prepared by his legal team in furtherance of that appeal, it is clear that a number of questions have been raised in relation to the process which led to the identification of Mr Megrahi by witness Mr Anthony Gauci. These include doubts about the legitimacy of the process by which Mr Gauci’s identification evidence was obtained, assessed and delivered, and what prompted significant failures by the Crown to disclose related material information. From these documents it appears that [police officer I J] and other police officers who were involved in this identification process might well have been aware that a number of the aspects of the process they were following were flawed and did not accord with guidelines extant at the time or with any general principles of fairness to the accused. It is submitted that the omissions and failings referred to in the relevant reports indicate that [I J] and others have important questions to answer in connection with the identification process, and we believe, taken as a whole, that their conduct constitutes an attempt to pervert the course of justice and a breach of section 44 (2) of the Police (Scotland) Act 1967 (violation of duty by a constable).

The above numbered complaints simply constitute the basic allegations. Documents containing detailed supporting material have been prepared and will be made available to the investigating authorities as and when requested by them.

You above all will realise the seriousness of these allegations which strike at the very heart of the Lockerbie investigation past and present. Effectively, we are complaining about the actions of Crown Office officials, the prosecution and investigating authorities including the police, and certain other agencies and individuals. Given the controversy surrounding this whole affair we request that you give serious thought to the independence of any investigating authority you appoint. As a group we believe that you should appoint someone outwith Scotland who has no previous direct or indirect association with Lockerbie or its ramifications.

You will be aware of the disquiet we feel about the delay and obfuscation which have surrounded this whole affair since 1988. Nevertheless we understand you will require reasonable time to inquire into these allegations and decide how you wish to proceed. We therefore propose to keep these matters private and confidential for a period of thirty days from the date of this letter to allow you to carry out the necessary enquiries, decide how you wish the matter to be investigated, and respond to us. We thereafter reserve the right to make the above matters public as and when we feel appropriate and reasonable. Furthermore, on the grounds that PE1370 is due for consideration on 25th September, we also reserve the right to inform the Justice Committee of the fact that we have lodged this document with yourself, making reference (in general terms only) to the fact that it contains serious allegations relating to the Lockerbie/Zeist case.

In passing we would also note the recent publicity given to the perceived lack of independence in Scotland between the Lord Advocate and the Scottish Government by Mr Andrew Tickell. (http://lallandspeatworrier.blogspot.co.uk/2012/08/the-unpolitical-snps-pied-lord-advocate.html)

We also share this concern and would hope, for reasons that must be obvious from the foregoing, that your response to this letter will be free from Crown Office influence of any kind.

We thank you for your time and attention in this matter and look forward to an acknowledgment of receipt by return.

[RB: Three additional allegations were added by JfM at a later date. These nine allegations remain under investigation in Police Scotland’s Operation Sandwood.]

Trial examines 'secret' CIA papers

[This is the headline over a report published on the BBC News website on this date in 2000. It reads in part:]

The Lockerbie trial has been shown the CIA documents at the centre of a dispute between prosecution and defence lawyers.

Scotland's senior law official, Lord Advocate, Colin Boyd QC, said the papers - which contain details of cable communications - featured new information.

He said the documents included remarks made by Libyan defector Abdul Majid Giaka, who worked as a CIA agent at Malta Airport and whom the prosecution wants to call as a witness at the trial.

Mr Boyd said: "This is the first time the CIA has produced evidence for a foreign court.

"It may also be the first time that cables themselves have been used in any court either in the US or outwith.

"It's been emphasised to me that the amount of information now in the public domain far exceeds that ever put in the public domain before by the CIA in relation to these events."

Mr Boyd said he watched last week at the US Embassy in The Hague as a CIA records custodian identified as William McNair undid deletions in the cables from Giaka, whom crown prosecutors refer to as "Mr Majid".

He said: "I can tell the court that everything Mr Majid is reported to have said in these cables is revealed except for three matters."

These refer to the identities of CIA informants and methods of operation.

Newly revealed information included references to CIA payments to Giaka and his request for "sham surgery" to secure a waiver from military service in Libya.

There is also mention of payments from the CIA he could receive in return for giving evidence.

Giaka has been living for the last 10 years under a witness protection scheme in the US and is regarded as a crucial witness against the accused men. He is expected to take the stand later this week. (...)

Arguments over the CIA papers have dominated the last few days of the trial of the two Libyans who are said to have bombed Pan AM flight 103 over the small Scottish town of Lockerbie.

The special court in the Netherlands was adjourned on Monday to give the defence time to consider the new information.

[RB: What follows is part of an account of the CIA cables saga written by me for The Scotsman  some ten years ago:]

The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism - and indeed it casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction.

To illustrate this in the context of the Lockerbie trial, it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the US in a witness protection programme. Giaka's evidence was ultimately found by the court to be utterly untrustworthy. This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony. Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been more difficult, and perhaps impossible.

Yet the Crown strove valiantly to prevent the defence obtaining access to these cables. At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC, stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.

Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way. Second, they considered whether there was anything which would appear to reflect on the credibility of Majid... On all of these matters, the learned Advocate Depute reached the conclusion that there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special defence... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."

One judge, Lord Coulsfield, then intervened: "Does that include, Lord Advocate... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"

The Lord Advocate replied: "Well, I'm just checking with the counsel who made that... 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 Majid on these matters."

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety. Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

Cover-up, conspiracy and the Lockerbie bomb connection

[This is the headline over a long article that appeared in Scotland on Sunday on 19 February 2006. The following are excerpts. The reason for drawing attention to this article on 3 August 2017 appears in the first paragraph.]

If there is a day when the seemingly inconsequential case involving DC Shirley McKie morphed into the crisis which today is threatening the reputation of Scotland's judicial and political system, it is Thursday, August 3, 2000.

It was already more than three years since McKie had visited a house in Kilmarnock where a woman called Marion Ross had been brutally murdered. Since then McKie had been accused of entering that house unauthorised, and leaving her fingerprint on the crime scene. She had been charged with perjury, after claiming in court she had never set foot in there. She had been humiliated at the hands of her former colleagues.

Now, on that August day, a group set up by the Association of Chief Police Officers Scotland (ACPOS) to examine the McKie case, was faced with a stunning report. It had already been established that the fingerprint experts at the Scottish Criminal Records Office (SCRO) had got it wrong and that the print was not McKie's. Now, the document in front of the group - an interim update from James Mackay, the man they had asked to investigate the case - claimed the SCRO officers had acted criminally to cover up their mistakes. The consequences were immense: if Scotland's forensic service was both guilty of errors and of attempting to conceal those errors, what confidence could anyone have in the entire justice system?

Last week, Scotland on Sunday revealed the contents of Mackay's final report, which had been kept secret for six years, and which was never acted upon by Scotland's chief prosecutor, Lord Advocate Colin Boyd. This week, we can reveal that it was not just police and prosecutors who knew its contents; the devastating findings of the interim version were passed on to ministers as well.

Mackay, a much respected former Deputy Chief Constable of Tayside police, had been commissioned to investigate the McKie case after a separate report by HM Inspectors of Constabulary had found that - despite the SCRO's claims - McKie's prints had never been at the crime scene. Mackay now probed deeper. As this newspaper revealed last week, his final report found that a mistake had been made, yet had not then been owned up to. "The fact that it was not so dealt with," he reported, "led to 'cover up' and criminality." [RB: See Wikipedia article Fingerprint Inquiry.] (...)

A second theory brings in the shadow of the Lockerbie bombing. Mackay's explosive report into the McKie case that August came three months after Boyd began the prosecution of Libyan suspects Abdelbaset Al Megrahi and Al Amin Khalifa Fhimah. The eyes of the world were focused on Scottish justice. What would it have said of that system if - just as the Crown was trying to convict the bombers - it emerged that fingerprint officials had been involved in "criminality and cover-up"?

Boyd strenuously denies that Lockerbie has any relevance to his judgments regarding the McKie case. When Iain McKie first raised the issue in 2000, Crown Office officials declared that Lockerbie "had not affected in any way the response from this or indeed any other department of the Scottish Executive to the issues raised by you."

But there is clear proof that senior justice chiefs had a stake in both cases; SCRO director Harry Bell, for example - whose agency was coming under such scrutiny - was a central figure in the Lockerbie investigation, having been given the key role in the crucial Maltese wing of the investigation, and given evidence in court.

Today's revelation that two American fingerprint experts who savaged the SCRO over the McKie case were asked by the FBI to "back off" suggests that plenty of people were aware of the danger that the case could undermine the Lockerbie trial.

Former MP Tam Dalyell - who has long campaigned on the Lockerbie case - said: "I have always felt that there was something deeply wrong with both the McKie case and the Lockerbie judgment. It is deeply dismaying for those of us who were believers in Scottish justice. The Crown Office regard the Lockerbie case as their flagship case and they will go to any lengths to defend their position."

The pressure for a full public inquiry is now growing day by day.