From an American conservative commentator

[The following are excerpts from an editorial that recently appeared on the The Free Library website, written by Seth Lipsky, founding editor of The New York Sun:]

As Abdelbaset Al-Megrahi settles in on the far side of the river Styx, let us reflect on the scandal of his final years. It will always be a mark on the administration of President Obama that the Libyan died a free man. He had been convicted in the downing of Pan American World Airways flight 103 over Lockerbie, Scotland, in 1988. There had been opportunity aplenty to act once a Scottish judge gave him his freedom in 2009. [RB: It was not, of course, a judge, but a Scottish Government minister.] But the American government failed to lift so much as a finger.

The administration may--or may not--have had the power to prevent al-Megrahi's release from a Scottish prison or his flight back home to Libya, where he was greeted by adoring throngs. The judge who freed him supposedly did so on "humanitarian" grounds, because, even though al-Megrahi killed 270 people, he was suffering from the indignities of prostate cancer. If the terrorist's release caught Mr. Obama and Secretary of State Hillary Clinton by surprise, as they suggested at the time, it's all the more shocking that there was no attempt to seize the mass murderer after he got to Libya.

Let those who believe that such a mission would have been piratical take a look at the precedents established by our courts. It strikes me as an important point, given the twilight nature of the war in which our country has found itself. The record is clear that if, in a lawless world, the violators of our laws are brought back to our shores to face the music, our own be-robed justices won't be overly particular about the methods used to get them here. (...)

The broader point, though, is one to mark, particularly in the midst of the kind of war in which America finds itself. When a crime has been committed under our laws, and our country is being mocked from the safety of a foreign shore the way it was mocked by Scotland and Libya and Abdelbaset al-Megrahi, the government of America can act. And when it does, the Supreme Court will not stand in its way.

Unauthorised blogpost

Overnight a post, consisting merely of a hypertext link, was made to this blog from a source other than myself. How it happened, I do not know and I deleted the post as soon as I became aware of it.  Other Lockerbie campaigners have recently been subjected to attacks on their computers.  Perhaps it is now my turn.

Jalil and the Sunday Express debunked

[This is the headline over an item posted today on the website Megrahi: You are my Jury.  It contains John Ashton’s reaction to today’s Scottish Sunday Express article and reads as follows:]

The following article appears on the front of today’s Scottish Sunday Express under the ludicrously overblown headline Lockerbie: the truth at last. It reports on the latest claims of the leaders of Libya’s National Transitional Council and interim head of state Mustafa Abdul Jalil. As so often with the Sunday Express, the article recycles claims that are already in the public domain (the interview and was first reported last month) and when analysed in detail, is really thin stuff. My comments are in normal typeface.

The head of the Libyan government has revealed his country’s true role in the Lockerbie bomber’s release in a sensational television interview.  Mustafa Abdul Jalil, who has been running the war-torn North African state since the downfall of Colonel Gaddafi last year, broke his silence to expose the contents of secret government files in Tripoli.

He revealed that Abdelbaset Ali Mohmed al-Megrahi – the only man convicted of Britain’s worst ever terror atrocity – and his family were paid up to £15million in monthly installments to “buy his silence”.

Jalil also disclosed that Megrahi was ordered to drop his appeal by Gaddafi, who was terrified he would “release critical and confidential information” and have his conviction overturned.

In addition, Jalil said the new regime would continue to work with Scottish and American investigators to “reopen past files that can deliver the truth”.

And, in a further astonishing claim, he suggested that Gaddafi deliberately blew up a Libyan passenger jet in 1992 in a ruthless tit-for-tat bid to frame the West.

Speaking to Dubai-based TV station Al Arabiya, Jalil – the head of the ruling National Transitional Council – said Megrahi was paid 150,000 Euros per month “to keep him quiet”.

If the payments ran from when he was handed over to Scottish police, in April 1999, to his release in August 2009, they would total 18.6million Euros – or £14.6million at today’s exchange rates.

The fact that Abdelbaset’s family were paid by the government is no secret and hardly surprising. He was the main breadwinner of a family of five who, by the time he gave himself up for trial in 1999, had endured seven and a half very difficult years. In agreeing to stand trial, Abdelbaset and Lamin Fhimah helped free the country from years of crippling sanctions. In that context, the figures cited are paltry, especially when compared to the billions spent by the Libyan government to settle the case. There is absolutely no evidence that the payments were to keep Abdelbaset quiet. If that was Gadafy’s aim, then surely Fhimah would also have been paid (in a newspaper interview last year he claimed that he had had to sell his farm because the government had left him financially high and dry). Alternatively, Gadafy could have had them both killed well before the trial was mooted.

In the interview, Jalil – who was also Gaddafi’s Justice Minister from 2007 to 2011 – said he had been “advised to keep away from cases linked to external affairs, and this includes the Lockerbie case”.

This is hardly surprising. As justice minister, he had responsibility for the domestic justice system, rather than international relations. Furthermore, Abdelbaset’s return to Libya in August 2009 effectively closed the case. It’s worth noting that Jalil’s successor as justice minister, Mohamed al-Alagi, who is now head of Libya’s human rights commission, has publicly stated that Abdelbaset is innocent.

He added: “However, I witnessed two things. First, the insistence of both Saif [al-Islam Gaddafi, the dictator's son] and his father that I get back [Megrahi] by whatever means necessary…

“Meanwhile, the sentence was not completed and the appeal was getting closer.

“But the insistence of the country for Abdelbaset to waive his appeal and his fast return indicates the country was in a crisis, considering that the late Abdelbaset wanted to release critical and confidential information about Lockerbie.”

It’s not clear here whether the country referred to is Libya or Scotland. The only critical and confidential information that Abdelbaset sought the release of was held by the Crown Office and the UK authorities.

Megrahi’s decision to drop his appeal, just days before his release from prison, has always been shrouded in mystery – especially because he continued to protest his innocence right up until his death in May.

Jalil added: “The Libyans wanted him back as soon as possible, in return for the waiver of the appeal. If the appeal had persisted maybe some critical evidence that proved his innocence would have surfaced.


“And perhaps evidence that convicted him would have resurfaced as well. So, they preferred that he returns to Libya at this point to ensure that he does not reveal confidential information.”

Again, it’s unclear exactly what Jalil means (perhaps owing to poor translation). The Libyan government had no power to make abandonment of the appeal a condition of his release and had no interest in doing so. The appeal would not have produced any evidence of Libyan government involvement, because it was focused on the narrow issue of the safety of Abdelbaset’s conviction. There was no prospect of Abdelbaset revealing confidential information concerning Libyan government involvement in the bombing, firstly, because he almost certainly had none and, secondly, because, if he had, he would have both undermined his own appeal and jeopardised the safety of his family in Libya.

However, he insisted he had been misquoted by a Swedish newspaper last year which claimed he had evidence that Gaddafi personally ordered the December 1988 bombing of Pan Am Flight 103, which claimed 270 lives.

He said: “All I said then is what I say right now, which is that the regime was involved in this case, evident by insisting he returns and that they spent a lot of money on him while he was in jail.”

Really? Sounds like backpedalling to me.

Jalil also hinted at the existence of government files which could finally establish once and for all whether the bombing was the work of Megrahi and other Libyan agents, under orders from Gaddafi – or was in fact an Iranian-backed plot, as many campaigners believe.

He said: “We sympathize with the families of the innocent victims and we are willing to reopen past files that can deliver the truth.”

Megrahi, who developed terminal prostate cancer during eight years behind bars in Scotland, is known to have had a number of Swiss bank accounts, including one which allegedly held £1.8million at the time of his trial in 2000.

The £1.8 million claim originates from a Sunday Times article of 20 December 2009. In fact there is only evidence of one Swiss bank account, which was dormant from 1993 onwards, and had a balance of only $23,000. Had Abdelbaset given evidence at trial, he could have accounted for all the payments in and out of the account.

But the full extent of the fortune paid to ensure his silence will appal many of those who lost loved ones in December 1988.

However, campaigners calling for a public inquiry into Lockerbie said the new evidence supports claims that Megrahi was simply a well-paid “fall guy”.

Robert Black, Professor of Scots Law at the University of Edinburgh, said: “He was getting a lot of money because he had taken the fall for something he didn’t do.

“By surrendering himself for trial in Scotland he brought Libya under Gaddafi back into world commerce. That was something the Libyans thought worth paying for.”

This wrongly implies that Abdelbaset’s supporters believe that he took the rap for Gadafy. I’m not aware of any of his prominent supporters, including Prof Black, who believe that to be the case. [RB: John Ashton is correct. On the evidence currently available, I do not believe Gaddafi or Libya to have been responsible for the destruction of Pan Am 103.]

Gaddafi ordered 1992 bombing
COLONEL Gaddafi may have deliberately blown up a passenger jet, killing 157, in a bizarre bid to frame the American and British governments and sue for compensation.

Libyan Arab Airlines Flight 1103 was involved in a mid-air collision with a Libyan MiG 23 fighter jet as it was approaching Tripoli Airport on December 22, 1992.

The fighter pilot and navigator safely ejected, but all of the Boeing 727′s passengers or crew were killed – including oil worker Victor Prazak, from London.

At the time, Gaddafi was under growing pressure to hand over the Lockerbie suspects and facing severe UN sanctions.

In his TV interview, current Libyan leader Mustafa Abdul Jalil said: “This trip was chosen on a day that coincides with the Lockerbie bombings and the flight number was almost identical.

“It was confirmed that the plane, going from Benghazi to Tripoli, was stuffed with explosives. It was given a new route deep into the sea, that no other plane has taken before.

“It was in the landing stages at Tripoli when, some say, it was intersected by another plane that bombed it.

“Nothing was left intact from the bombing.”

I have not studied the case of LAA flight 1103, but find Jalil’s suggestion bizarre.


[RB: As far as I can see from an internet trawl, the only UK newspaper to have featured on Monday this Sunday Express story is the Daily Record, whose report can be read here. A typically ill-informed and wrong-headed comment from the moribund Scottish Conservatives can be read here.]

Libyan NTC head: Megrahi's appeal might have proved his innocence

[A report in today’s edition of the Sunday Express reads in part:]

The Lockerbie bomber was paid up to £15million by Colonel Gaddafi’s regime to “buy his silence” over who really blew up a passenger jet over the Scottish town.

This is the latest claim by outgoing Libyan leader Mustafa Abdul Jalil.

He said Abdelbaset Ali Mohmed al-Megrahi was paid 150,000 euros a month.

From his arrest in 1999 to his release in 2009, that would total £14.6million.

Jalil denied ever saying the late tyrant personally ordered the bombing, adding: “All I said is that the regime was involved.”

He said Megrahi, who protested his innocence over the 1988 atrocity in which 270 people died, was ordered to drop his appeal by Gaddafi who feared the truth would be revealed.

[This story was reported in a post on this blog more than three weeks ago, on 21 June 2012. The Express has always been at the forefront of news-gathering and dissemination, of course. 

A longer report by Ben Borland is the front page lead story in the Scottish edition of today's Sunday Express. It reads in part:]

The head of the Libyan government has revealed his country's true role in the Lockerbie bomber's release in a sensational television interview.

Mustafa Abdul Jalil, who has been running the war-torn North African state since the downfall of Colonel Gaddafi last year, broke his silence to expose the contents of secret government files in Tripoli.

He revealed that Abdelbaset Ali Mohmed al-Megrahi - the only man convicted of Britain's worst ever terror atrocity - and his family were paid up to £15million in monthly installments to "buy his silence".

Jalil also disclosed that Megrahi was ordered to drop his appeal by Gaddafi, who was terrified he would "release critical and confidential information" and have his conviction overturned.

In addition, Jalil said the new regime would continue to work with Scottish and American investigators to "reopen past files that can deliver the truth".

And, in a further astonishing claim, he suggested that Gaddafi deliberately blew up a Libyan passenger jet in 1992 in a ruthless tit-for-tat bid to frame the West.

Speaking to Dubai-based TV station Al Arabiya, Jalil - the head of the ruling National Transitional Council - said Megrahi was paid 150,000 Euros per month "to keep him quiet".

If the payments ran from when he was handed over to Scottish police, in April 1999, to his release in August 2009, they would total 18.6million Euros - or £14.6million at today's exchange rates.

In the interview, Jalil - who was also Gaddafi's Justice Minister from 2007 to 2011 - said he had been "advised to keep away from cases linked to external affairs, and this includes the Lockerbie case".

He added: "However, I witnessed two things. First, the insistence of both Saif [al-Islam Gaddafi, the dictator's son] and his father that I get back [Megrahi] by whatever means necessary...

"Meanwhile, the sentence was not completed and the appeal was getting closer.

"But the insistence of the country for Abdelbaset to waive his appeal and his fast return indicates the country was in a crisis, considering that the late Abdelbaset wanted to release critical and confidential information about Lockerbie."

Megrahi's decision to drop his appeal, just days before his release from prison, has always been shrouded in mystery - especially because he continued to protest his innocence right up until his death in May.

Jalil added: "The Libyans wanted him back as soon as possible, in return for the waiver of the appeal. If the appeal had persisted maybe some critical evidence that proved his innocence would have surfaced.

"And perhaps evidence that convicted him would have resurfaced as well. So, they preferred that he returns to Libya at this point to ensure that he does not reveal confidential information."

However, he insisted he had been misquoted by a Swedish newspaper last year which claimed he had evidence that Gaddafi personally ordered the December 1988 bombing of Pan Am Flight 103, which claimed 270 lives.

He said: "All I said then is what I say right now, which is that the regime was involved in this case, evident by insisting he returns and that they spent a lot of money on him while he was in jail."

Jalil also hinted at the existence of government files which could finally establish once and for all whether the bombing was the work of Megrahi and other Libyan agents, under orders from Gaddafi - or was in fact an Iranian-backed plot, as many campaigners believe.

He said: "We sympathize with the families of the innocent victims and we are willing to reopen past files that can deliver the truth."

Megrahi, who developed terminal prostate cancer during eight years behind bars in Scotland, is known to have had a number of Swiss bank accounts, including one which allegedly held £1.8million at the time of his trial in 2000.

But the full extent of the fortune paid to ensure his silence will appal many of those who lost loved ones in December 1988.

However, campaigners calling for a public inquiry into Lockerbie said the new evidence supports claims that Megrahi was simply a well-paid "fall guy".

Robert Black, Professor of Scots Law at the University of Edinburgh, said: "He was getting a lot of money because he had taken the fall for something he didn't do.

"By surrendering himself for trial in Scotland he brought Libya under Gaddafi back into world commerce. That was something the Libyans thought worth paying for."

The Maltese Double-Cross and Trail of the Octopus

Allan Francovich's film The Maltese Double-Cross can be viewed here and Lester Coleman's book Trail of the Octopus: From Beirut to Lockerbie can be read here.

The links are supplied because it was recently suggested to me that these sources were hard to find.  As most readers of this blog are aware (though from past experience some few clearly are not) my provision of a link to a Lockerbie-related document does not in any way imply endorsement of its contents.

Disturbing questions

[This is the headline over a review by Neil Berry of Megrahi: You are my Jury in today's edition of the Dubai-based Khaleej Times. It reads as follows:]

Published by the plucky Scottish press Birlinn, John Ashton’s new book Megrahi: You Are My Jury: The Lockerbie Evidence casts grave doubt on the validity of Abdelbaset Al Megrahi’s conviction as the Libyan terrorist responsible for blowing up Pan Am Flight 103 and murdering 259 mostly American people in December 1988. At the same time, it raises deeply disturbing questions about the United States and United Kingdom’s boasted commitment to truth and justice.

It is perhaps no surprise that the mainstream British media are fighting shy of this bulky volume the attention it deserves. For to discuss its contents would mean re-visiting a vastly acrimonious episode that threatened to poison relations between Britain and the US: the early release in August 2009 from his Scottish prison — on grounds that he was dying of cancer — of a Muslim convict who was seen by many as the personification of evil.


A member of Megrahi’s legal team, John Ashton is liable to the charge that his familiarity with the Libyan has clouded his judgment, but his book — which intersperses an exhaustive examination of the evidence that led to his conviction with Megrahi’s own testimony — collates the work of several hands and is a model of forensic rigour. It is indeed hard to believe that any fair-minded person could read it without being persuaded that Megrahi was the victim of a grotesque miscarriage of justice. The powerful impression left by the book is that Megrahi, who had run security for Libyan Arab Air Lines while engaging in clandestine trading, had the ill-luck to be in Malta, the putative point of origin of the Lockerbie bomb, at the wrong time, and that he was framed because the US found it convenient to point the finger of blame at Libya.


What has never been widely recognised is that the blowing up of Pan Am 103 over the Scottish town of Lockerbie took place six months after the shooting down of an Iranian airbus over the Arabian Gulf in July 1988 by the American battle cruiser, the USS Vincennes, with the deaths of 290 Iranians, most of them pilgrims bound for holy city of Makkah. It was an outrage Iran immediately vowed to avenge, and all the indications were that it was Iran, acting through the shadowy terrorist splinter group, the Palestine Popular Struggle Front, that mandated the Lockerbie operation.


If, in the aftermath of Lockerbie, the US shrank from confrontation with the Islamic Republic, it was because, on top of seeking to negotiate the release of American hostages held by Iranian-backed terrorists, it was concerned to have a free hand in repelling Saddam Hussein’s attempt to annex Kuwait to Iraq. Yet a scapegoat for Lockerbie was imperative and Libya, with an egregious leader, Colonel Gaddafi, whose image in the West was that of a deranged tribal savage, figured as the ideal candidate.  John Ashton’s book underlines how readily the Western public accepted the case for imposing crippling sanctions on Libya as the culprit for Lockerbie. Few demurred when —  even before he was sentenced by three Scottish judges at a special court in the Netherlands in 2001 — US President Bill Clinton and Secretary of State Madeleine Albright repeatedly described Megrahi not as a suspect but as a mass murderer. All this would be chilling enough — even if the case against Megrahi were a more compelling one.


In truth, his conviction relied on the testimony of a shopkeeper in Malta who had but the sketchiest memory of selling clothes to an Arab customer around the time when a suitcase containing the bomb was supposedly put on a feeder flight to London, there to be loaded onto Pan Am 103. It relied, too, on a circuit board, alleged to have been part of the bomb and to have derived from a batch of Swiss timing devices sold to Libya, though it was to transpire that this item of evidence — found far from the Lockerbie crash site — had nothing to do with the timers in question.


What is particularly shocking is how much material evidence was withheld from Megrahi’s trial — including the striking circumstance that the night before Pan Am 103 flew from London Heathrow, the airport was broken into.


The assumption that the Lockerbie bomb originated in Malta may well have deflected attention from a far more productive line of inquiry. Megrahi endured his eight-year Scottish incarceration in the bitter knowledge that he had been convicted on a basis that came nowhere near to satisfying the principle that guilt should be proved ‘beyond reasonable doubt’.


Following 9/11, however, he felt that his chances of ever clearing his name had all but vanished. Certainly, the belief that he was the ‘Lockerbie bomber’, a malevolent Muslim who had carried out Britain’s worst ever terrorist atrocity, lodged deep in the public mind — so deep that when he was diagnosed as having only months to live and Scottish Justice Secretary, Kenny MacAskill, decreed he should be allowed to return to Libya to die, there was widespread outrage, not least in the United States. In Britain and the US, many were of the opinion that that Megrahi was the beneficiary of a squalid oil deal struck with General Gaddafi by Britain’s sometime Prime Minister, Tony Blair, and that British and Scottish politicians were not only colluding with a vile regime but insulting the dead.


Outrage about the commutation of his sentence grew as Megrahi confounded Scottish medical expectations regarding his survival prospects, living on in Tripoli until May of this year. And though he remained desperately ill, there were to be vindictive demands, following the toppling of Colonel Gaddafi in 2011, that he be made to face justice in the United States. Yet on the evidence of John Ashton’s book it is not his truncated sentence that ought to be on British and American consciences. It is the fact that Abdelbaset al-Megrahi was ever convicted at all.

US channel broadcasts Aljazeera Lockerbie film

Aljazeera's 2011 documentary Lockerbie: The Pan Am Bomber? is being broadcast this week by Cambridge, Massachusetts, television station Cambridge Community Television (channel 8). The next showing is on Tuesday 10 July at 1pm EDT (5 hours behind BST).  Please note that this is not the latest February 2012 Aljazeera documentary Lockerbie: Case Closed.

The unsoundness of Megrahi's conviction

[There have been few, if any, developments in the Lockerbie case over the past ten days. To fill this gap, I am re-publishing an article written by me that first appeared on this blog almost exactly five years ago, just after the Scottish Criminal Cases Review Commission reported that it had found six reasons for concluding that Mr Megrahi's conviction might have amounted to a miscarriage of justice.]

On 28 June 2007 the Scottish Criminal Cases Review Commission referred Abdelbaset 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.

Ex Africa ...

Totsiens, Middelpos.  Totsiens, Gannaga Lodge.  All good things come to an end. And so it is with my six months in the wilds of the Roggeveld. I shall be back in Scotland (and roughly 6000 miles closer to Lockerbie) on 5 July and will re-commence posting then or shortly thereafter.

Further performances of The Lockerbie Bomber play

If you missed Tryst Theatre’s performance of Kenneth N Ross’s play The Lockerbie Bomber in May, you might be interested to know there are four further performances arranged for early September at The MacRobert Playhouse Theatre in Stirling. Tickets are now on sale.

Controversial and heart-rending: the destruction of Pan Am Flight 103 over Lockerbie in December 1988 killed 270 people and was the worst terrorist atrocity in the UK. Now, for the first time, the horrific tragedy is brought to the stage in this new play which lifts the veil of secrecy thrown over the bombing.

“A few people, high up in the US and UK Governments, know exactly what happened, but they’re never going to tell us.”

"Sooner or later, to protect itself, the Scottish Government will have to cast the Crown Office adrift and abandon the fiction that Megrahi’s conviction is safe."

The cast is Carol Clark, Rhona Law, Jim Allan, Brian Paterson, Craig Murray and Alan Clark.

A review of the May show is at http://lockerbiecase.blogspot.co.uk/2012/05/review-by-vronsky-of-lockerbie-bomber.html

The MacRobert Playhouse Theatre, University of Stirling, Saturday 8 and Sunday 9 September at 7.00pm and 9.00pm both nights. Tickets £10 and £9 (concessions) from the MacRobert Box Office on 01786 466666 or at www.macrobert.org

[From an e-mail from Alan Clark.]