Megrahi petition returns to Scottish Parliament Justice Committee

[Justice for Megrahi’s petition features on the agenda for the meeting of the Scottish Parliament’s Justice Committee to be held on Tuesday 5 September 2017 starting at 10.00 in Holyrood Committee Room 2. The following are (a) the committee clerk’s note on this agenda item and (b) Justice for Megrahi’s submission to the committee:]

PE1370: Independent inquiry into the Megrahi conviction

Terms of the petition

PE1370 (lodged 1 November 2010): The petition on behalf of Justice for Megrahi (JFM), calls on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.

Current consideration

7. At its meeting on 2 May 2017 the Committee agreed, as it had at its meeting on 24 January 2017, to keep the petition open pending completion of Operation Sandwood. This is the operational name for Police Scotland’s investigation into the nine allegations of criminality levelled by Justice for Megrahi at the Crown Office and Procurator Fiscal Service, the police, and forensic officials involved in the investigation and legal processes relating to Megrahi’s conviction. The allegations range from perverting the course of justice to perjury.

8. The clerks understand from Police Scotland that the operation is ongoing and, although in its final stages, there are certain aspects that are not fully concluded. Once Police Scotland’s report is completed, it will be submitted for consideration by an independently appointed Queen’s Counsel appointed by Police Scotland, before going to the Crown Office. Clerks continue to seek updates from Police Scotland as to a likely publication date but Police Scotland is as yet not in a position to suggest when the report will be made public. (The JfM submission indicates that it believes the report will be available to the Crown Office at some stage this year).

9. The petitioners have provided a written submission (Annexe A) requesting the Committee to confirm that the petition will remain open until Crown Office consideration of the police report is complete and any related decisions are made. The submission also states, along similar lines to previous submissions, that the Petitioners continue to have regular meetings with the Operation Sandwood police team and that they have faith in the integrity and completeness of the police inquiry.

10. On 4 July 2017, the Scottish Criminal Cases Review Commission (SCCRC) confirmed it had received an application to review the conviction*. The SCCRC may refer a case to the High Court if it believes that a miscarriage of justice may have occurred and that it is in the interests of justice that a reference should be made. The SCCRC stated that it will give careful consideration to this new application, but that it will not make any further comment at this time.

11. The Committee is asked to consider and agree what action it wishes to take in relation to the petition (...), having regard to its decisions in January and in May to keep the petition open pending the completion of Operation Sandwood.

*Mr Megrahi previously applied to the SCCRC in 2003, who referred his case to the High Court for appeal in 2007; however, this appeal was abandoned in 2009. After Mr Megrahi’s death in 2012, a new application was made to the SCCRC on his behalf in 2014, which was rejected in 2015 as the SCCRC had not had access to appeal materials from 2007-09

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Annexe A

Letter from Justice for Megrahi

25 August 2017

Justice for Megrahi submission to the Justice Committee of the Scottish

Parliament’s consideration of PE 1370 on 5th September 2017

The position of Justice for Megrahi (JfM) remains largely as was following our last communication with your good selves on the Justice Committee of the ScottishParliament (JC).

We reiterate the value we place on the continued JC scrutiny until Crown Office has considered the Operation Sandwood report and has reported on its findings. JfM's sole interest remains acquiring justice for the victims of Pan Am 103, their families and friends, and those whom we regard as having been wrongly accused and convicted.

As your committee members will understand this report is central to any further

Analysis of the Lockerbie tragedy, is of direct significance to the ongoing SCCRC consideration of the Megrahi family's submission for another appeal and is vital if the massive stain on the Scottish Justice System is ever to be removed.

Moreover, it should be added that JfM and Police Scotland continue to maintain a highly valued and constructive rapport.

In short, JfM has complete confidence in the work of Police Scotland on its behalf regarding JfM's various allegations of criminality associated with the conviction of Mr al Megrahi.

Our present understanding is that the Police Scotland Operation Sandwood Report is in its final stages and will be available to the Lord Advocate at some stage this year.

JfM wishes all members of the Justice Committee of the Scottish Parliament our very best and looks forward to being represented at your meeting on 5th September, 2017.

The centrepiece of the case against Megrahi

[On this date in 1989 the Maltese shopkeeper Tony Gauci was first interviewed by Scottish police in connection with Lockerbie. What follows is a section from Dr Kevin Bannon’s PhD thesis:]

The development of Tony Gauci’s statements from his first police interviews in September 1989 through to his testimony in court, reveal his recollections systematically developing in favour of the Crown narrative, in increasing contradiction of all his freshest recollections. This is transparently evident in the following compendium in which each subject of Gauci’s testimony in bold type is followed by actual or accepted facts summarised in italics, below which the essential statements are put chronologically:

1. Stature of the Purchaser:

The height and build of the purchaser. Al-Megrahi was 5’7” tall, average build.

1 September1989: ‘Six feet or more in height’ big chest, large head, well built.

26 September 1989: ‘around six feet or just under that in height’ and ‘broad built’.

11 July 2000 (Camp Zeist): ‘..below six feet’. ‘He wasn’t small. He was a normal stature’.

2. Purchase of clothing:

Slalom shirts. 2 Slalom shirts found at Lockerbie, one grey and one blue & white.

1 September 1989: No mention in statements of any shirts sold.

30 January 1990: ‘That man didn’t buy any shirts for sure’…‘I am sure I did not sell him a shirt’.

10 September 1990: I now remember that the man who bought the clothing also bought a beige ‘Slalom’ shirt and a blue and white striped shirt.’

11 July 2000 (Camp Zeist: asked ‘How many shirts did the Libyan buy?’): ‘Two’ shirts ‘Slalom, something Slalom’ one ‘blue checked’ and the other ‘greenish’. ‘It’s greenish and greyish. It’s more greyish…’

Pyjamas. 1 pair, striped, found at Lockerbie.

1 September 1989: ‘3 pair pyjamas’ (un-described).

11 July 2000: Did he buy any pairs of pyjamas? ‘Yes he did. He bought two pairs, striped’.

Cardigans. Fragments of 2 Cardigans found, one black and one brown.

1 September 1989: 1 cardigan (listed). Black and red colour.

11 July 2000: ‘..two pullovers.’ ‘They were cardigans.’ ‘One was blue, the other was a brownish colour’.

‘Babygro’ romper suit. Crash-site find had lamb’s head motif.

1 September 1989: Gauci said that the Babygro had a sheep’s face on the front.

13 September 1989: Gauci reiterated that the Babygro had a sheep’s head, even when shown the control sample with a lamb’s head, declaring that the sheep’s head design had been discontinued since he received it. Police subsequently established that the Babygro manufacturer had never produced a sheep’s head design.

4 October 1989: Gauci initially declared he was not sure about the sheep’s head design. Then said he was "fairly certain" that the Babygro sold to the purchaser had a lamb motif.

Payments for items sold. Gauci’s uncorroborated figures (in Maltese Pounds):

1 September 1989: Sale was £76.50, purchaser paid in £10 notes and received £4 change. Gauci later said the purchaser paid a total of £56 in cash.

19 September 1989: Second cardigan recollection; raises the sale to £88.

10 September 1990: Sale of 2 shirts raises Gauci’s recollected bill to £97 or £98.50.

11 July 2000: Purchaser gave him £80 for a total bill of £77.

3. Time and circumstances of purchase:

Rain. Meteorological evidence: 90% probability of no rain in Sliema on December 7.

1 September1989: ‘..it was raining’.

21 February 1990: ‘it had almost stopped raining, and it was just drops coming down’.

10 September 1990: ‘very little rain on the ground, no running water, just damp’.

11 July 2000, (Camp Zeist): ‘..it started dripping. Not very -- it was not raining heavily. It was simply -- it was simply dripping’.

11 July 2000: ‘It wasn't raining. It wasn't raining. It was just drizzling’.

Christmas lights/decorations. Decorations up and switched on 6 December 1988.

19 September 1989: ‘The decorations were not up when the man bought the clothes’.

10 September 1990: ‘There were no Christmas decorations up, as I have already said...’

11 July, 2000 (Camp Zeist): ‘..yes, there were Christmas lights. They were on already. I’m sure.

Date of purchase. Only December 7 fitted with al-Megrahi’s movements.

19 September 1989: ‘…I believe it…was at the end of November’.

8 October 1999 Precognition of Tony Gauci: ‘I remember it was the 29th of the month. I think it was November’. (Gauci recalled the date because he’d had a row with his girlfriend on that day).

11 July 2000 (Camp Zeist) : It must have been about a fortnight before Christmas. I don’t know whether it was a week or two weeks before Christmas’.

Second visit of Libyan customer. Al-Megrahi was not in Malta on September, 25 1989.

26 Sept 1989: Gauci said that the Libyan customer had returned to his shop the previous day (September 25) to buy dresses for a four-year-old child.

2 October 1989: (DCI Bell’s report of statement) Gauci said he was only 50% sure that the same Libyan had returned to the shop.

4 November 1991: Gauci said that the man who bought children’s dresses ‘really looked like’ [the purchaser]. Gauci seemed confused about the date of the visit.

18 March 1999 / 25 August 1999 (Precognition of Tony Gauci). Noted in DCI Bell’s words: ‘the man who bought the dresses looked like the purchaser but it was not the same person’.

Even minor details of Gauci’s testimony, including the collar sizes of shirts and the size of a jacket sold to the Libyan, drift consistently in favour of the Crown narrative.

It was not a secret that well before the Camp Zeist identification parade, Gauci had been exposed to newspaper articles featuring pictures of al-Megrahi including speculation about him as a suspect. In later SCCRC interviews, Gauci firstly admitted seeing the articles but could not recall specifics about them. Later he said that he could not recall seeing the articles at all, and later still he confirmed that he had not seen them - a transformation in the same, stepped fashion as most of his ‘recollections’ which at the very least, confirm his ineptitude as a witness.

Therefore, it is not merely the case (as has often been stated) that Gauci’s evidence was contradictory, but that in every aspect, it changed in favour of the Crown narrative, in some instances quite drastically. Gauci’s original, freshest recollections about the appearance of the Libyan purchaser and the time of his visit, would have, and should have, categorically eliminated al-Megrahi from suspicion.

Gauci’s testimony, the centrepiece of the case against al-Megrahi and, by implication, the principal Libyan connection to the crime, simply has no integrity whatsoever - nevertheless he was given a substantial financial reward for his latter evidence. These discrepancies render the entire case against al-Megrahi invalid. Of course this means that the considerable body of Camp Zeist testimony implicating al-Megrahi, such as the testimony of Majid Giaka, is false.

CIA memos reveal doubts over 'key' Lockerbie witness

[This is the headline over an article published in The Independent on this date in 2009. It reads as follows:]

A Walter Mitty type convinced the Americans he was a Libyan intelligence agent when he worked in the agency's garage

A Libyan "double agent" who was central to the CIA's investigation into the Lockerbie bombing exaggerated his importance in Tripoli's intelligence apparatus and gave little information of value, yet is still living at the US taxpayers' expense in a witness protection programme, according to previously unseen CIA cables.

Five months before the destruction of Pan Am flight 103 in December 1988, 27-year-old Majid Giaka turned up at the US embassy in Malta and "expressed a desire to relocate ... in return for sensitive information on Libya", in the words of a cable sent by a CIA case officer to his headquarters in Langley, Virginia, the same day. Mr Giaka claimed he was an agent of Libya's feared Jamahiriya security organisation, but it later turned out that he worked in the agency's garage.

More than 60 cables, uncovered in a BBC investigation, detail the relations between the Americans and a man later described in court as a real-life Walter Mitty. Mr Giaka, who said that he worked for Libyan Arab Airlines at Malta's Luqa airport as a cover, told the CIA that he wanted to remain in Malta. He promised he would co-operate fully with the CIA – in return for money.

At the time Libya was public enemy number one. But the CIA had few sources of information on the country, and Mr Giaka was put on the payroll. In return for information about Libyan officials coming and going from Malta, he received $1,000 a month and gifts. His handlers even agreed to fund $6,000 of fake surgery on his arm, so that he could avoid military service back home.

In the summer of 1989, the Lockerbie investigation was uncovering evidence which pointed to a Libyan connection, and the FBI believed the suitcase which blew up Pan Am flight 103 had started its journey from Luqa airport. The CIA hoped its Libyan agent would have inside knowledge, but the case officers reported back: "Giaka does not believe explosives hidden in an unaccompanied suitcase could be inserted into the handling process at Luqa International Airport."

The Libyan mole acknowledged that it could have been theoretically possible for officials in Tripoli to bring explosives on to the island via the diplomatic pouch, but "because Giaka believes he had the best contacts of LIA [Luqa International Airport], he does not think this type of operation could have been slipped by him".

The case officers cabled: "It is clear that Giaka will never be the penetration of the ESO [Libyan External Security Organisation] that we had anticipated ... unfortunately, it appears that our assisting him in scam surgery on his arm to avoid military service has had the reverse result that we had intended – it has also allowed him to avoid further service with the ESO, Giaka's true intention from the beginning".

But even after it turned out that he had only worked in the ESO garage, he was the only Libyan agent the CIA had in Malta, so it kept him on. By the autumn of 1989, a former Libyan Arab Airlines security official, Abdelbaset Al-Megrahi, was chief suspect for having planted the bomb on an Air Malta flight to Frankfurt (where it was transferred on to a Pan Am flight via London). But Mr Giaka "had no further information" on his one-time colleague.

Mr Giaka eventually returned to Tripoli in 1990 after the CIA money dried up. But the agency kept in touch with him and finally persuaded him in 1991 to come to America. Nine years later, Majid Giaka arrived at the Lockerbie bombing trial in the Netherlands. He described how he had seen Megrahi and his co-accused, Khalifa Fhimah, at Luqa airport before the bombing with a large brown suitcase. But the CIA cables confirm that nearly two years before, Mr Giaka didn't remember anything.

At the Lockerbie trial, the four judges described some of his evidence as "at best grossly exaggerated and at worst simply untrue" and concluded he was "largely motivated by financial considerations".

The reception given to Megrahi was low-key

What follows is an item originally posted on this blog on this date in 2009.

No ‘Hero’s Welcome’ in Libya

[What follows is the text of an opinion piece in The New York Times by Saif-al-Islam Gaddafi, the Colonel's son and, so some speculate, his likely successor.]

Contrary to reports in the Western press, there was no “hero’s welcome” for Abdel Basset Ali al-Megrahi when he returned to Libya earlier this month.

There was not in fact any official reception for the return of Mr Megrahi, who had been convicted and imprisoned in Scotland for the 1988 Lockerbie bombing. The strong reactions to these misperceptions must not be allowed to impair the improvements in a mutually beneficial relationship between Libya and the West.

When I arrived at the airport with Mr Megrahi, there was not a single government official present. State and foreign news media were also barred from the event. If you were watching Al Jazeera, the Arabic news network, at the time the plane landed, you would have heard its correspondent complain that he was not allowed by Libyan authorities to go to the airport to cover Mr Megrahi’s arrival.

It is true that there were a few hundred people present. But most of them were members of Mr Megrahi’s large tribe, extended families being an important element in Libyan society. They had no official invitation, but it was hardly possible to prevent them from coming.

Coincidentally, the day Mr Megrahi landed was also the very day of the annual Libyan Youth Day, and many participants came to the airport after seeing coverage of Mr Megrahi’s release on British television. But this was not planned. Indeed, we sat in the plane on the tarmac until the police brought the crowd to order.

So, from the Libyan point of view, the reception given to Mr Megrahi was low-key. Had it been an official welcome, there would have been tens if not hundreds of thousands of people at the airport. And the event would have been carried live on state television.

At the same time, I was extremely happy for Mr Megrahi’s return. Convinced of his innocence, I have worked for years on his behalf, raising the issue at every meeting with British officials.

Former Prime Minister Tony Blair recently confirmed my statement that Libya put Mr Megrahi’s release on the table at every meeting. He also made it clear that there was never any agreement by the British government to release Mr Megrahi as part of some quid pro quo on trade — a statement I can confirm.

Mr Megrahi was released for the right reasons. The Scottish justice secretary, Kenny MacAskill, freed Mr Megrahi, who is dying of cancer, on compassionate grounds. Mr MacAskill’s courageous decision demonstrates to the world that both justice and compassion can be achieved by people of good will. Despite the uproar over the release, others agree. A recent survey of Scottish lawyers showed that a majority of those surveyed agreed with the secretary’s decision.

It’s worth pointing out that we Libyans are far from the only ones who believe that Mr Megrahi is innocent of this terrible crime. In June 2007, the Scottish Criminal Cases Review Commission determined that a “miscarriage of justice” may have occurred and referred the case to the High Court. A retired Scottish police officer who worked on the case has signed a statement saying that evidence was fabricated. The credibility of a key witness, a shopkeeper in Malta, has subsequently been disputed by the Scottish judge who presided in the review. Even the spokesman of a family group of Lockerbie victims has said that the group was not satisfied that the verdict in the Megrahi case was correct.

What’s more, although we Libyans believe that Mr Megrahi is innocent, we agreed in a civil action to pay the families of the victims, and we have done so. In fact, we could have withheld the final tranche of payments last year, because the United States had not kept its part of the deal, to fully normalize relations within the formally agreed-upon time frame. Still, we made the final payment as an act of good will.

The truth about Lockerbie will come out one day. Had Mr Megrahi been able to appeal his case through the court, we believe that his conviction would have been overturned. Mr Megrahi made the difficult decision to give up his promising appeal in order to spend his last days with his family.

Libya has worked with Britain, the United States and other Western countries for more than five years now to defuse the tensions of earlier times, and to promote trade, security and improved relations. I believe that clarifying the facts in the Lockerbie case can only further assist this process.

I once again offer my deepest sympathy to the families and loved ones of those lost in the Lockerbie tragedy. They deserve justice. The best way to get it is through a public inquiry. We need to know the truth.

Abu Nidal and Pan Am 103

[What follows is the text of an article published on the website of Al-Ahram Weekly on this date in 2002:]

Abu Nidal is reported to have said that his organisation was behind the Lockerbie bombing. The news emerged after a series of interviews with Atef Abu Bakr, a one-time aide to the terrorist mastermind, published by the Arabic-language Al-Hayat newspaper last week. Abu Nidal was found dead in Baghdad last week. In 1988, Pan Am Flight 103 was blown up over Lockerbie, Scotland, killing 270 people.

Abu Bakr is a former spokesman for the group and was one of Abu Nidal's closest aides between 1985 and 1989. He subsequently split with him over management of the organisation. "Abu Nidal said during an inner-circle meeting of the leadership of the Revolutionary Council, 'I will tell you something very important and serious, the reports which link the Lockerbie act to others are false reports. We are behind what happened,"' Abu Bakr was quoted by the newspaper as saying.

Abu Nidal's organisation has been blamed for many terrorist attacks in the 70s and 80s, in which hundreds were killed or wounded.

Abu Nidal set up his organisation's headquarters in the Libyan capital, Tripoli, in 1987. He was put under house arrest when the Libyan leader, Muammar Gaddafi, came under pressure to crack down on militants after the Lockerbie bombing.

Abu Bakr's statements are shocking because, if true, they jeopardise the verdict given by a Scottish court, in the Netherlands, which sentenced Libyan Abdel-Basset Al-Megrahi to life in prison in 2000. Another Libyan suspect, Lamine Khalifa [Fhimah], was acquitted. In March this year, a Scottish appeals court upheld the murder conviction of Al- Megrahi.

Commenting on the new revelations, Tam Dalyell, the longest serving member of Britain's parliament, called on the government to investigate Abu Bakr's allegations "as a matter of the utmost urgency". He said that "if these allegations are true they blow everything relating to Lockerbie out of the water, including the trial in Holland."

If Abu Bakr's statements prove to be true, they would also demonstrate the unfairness of sanctions imposed on Libya, in 1992, for its failure to hand over its two suspects. The United Nations, supported by the US and Britain, imposed sanctions on air travel and arms sales to Libya in 1992. The sanctions were suspended, but not lifted, in 1999, when Gaddafi handed over Al-Megrahi and Khalifa.

Abu Bakr's accounts were surprising but not new. After the bombing took place on 21 December 1988, the US State Department said that an unidentified person had telephoned the US Embassy in Helsinki, Finland, on 5 December, saying there would be a bombing attempt within two weeks against a Pan Am aircraft flying from Frankfurt to the United States. The caller claimed to belong to the Abu Nidal group, the State Department said at the time.

Also in 1995, Youssef Shaaban, a Palestinian member of Abu Nidal's group confessed responsibility for the bombing before judicial authorities in Lebanon, where he stood trial for the assassination of a Jordanian diplomat in Beirut.

However, Shaaban's words were not taken seriously. The investigating magistrates did not document his confession. The US and Britain reacted by saying that they had clear evidence against the Libyan suspects. Even the Libyan suspects' defence team never made use of Shaaban's statements or the State Department's Helsinki evidence.

British MP, Dalyell, has long argued that the Libyans were not behind the attack and that it was carried out by Abu Nidal.

Accordingly, relatives of the Lockerbie victims have renewed their calls on Friday for an independent inquiry into the attack.

Indeed, many of the relatives and legal observers who attended the trial, echoed their dissatisfaction with its outcome. They claim that many questions remain unanswered.

Jim Swire, a spokesman for the families of British victims, said the reports bolstered calls for an independent inquiry into the bombing, lapses in airport security and why Britain had not acted on warnings that an attack might occur.

Swire added that Palestinian militant Abu Nidal's possible involvement was "one more of the many questions which we feel absolutely demand an independent inquiry into Lockerbie". Swire, whose daughter Flora was killed in the bombing, has long demanded an independent inquiry into Lockerbie to uncover how much British intelligence services knew about the attacks.

"We certainly have part, or all, of at least eight intelligence warnings, all of which were received in good time, some of them incredibly detailed. I think we have a right to know why these didn't lead to any form of special protection for our loved ones," he said.

The same view was echoed by Hans Koechler, one of five UN observers who followed the trial as part of the deal with Libya. He believes that Abu Bakr's comments underline the urgency of calls he has made for an independent public inquiry into the entire Lockerbie case.

"The fact that Libya had hired a defence team that grossly neglected its professional duties and chose not to use most of the legal means available to Al-Megrahi's defence requires an explanation," Koechler said in a statement released in Vienna this week.

Koechler also criticised the legal proceedings and documented his remarks. He argued in his report that in the aftermath of the original verdict, the trial did not proceed fairly and was not conducted in an objective manner.

Ibrahim Legwell, former head of the Libyan consortium of jurists, acknowledged the poor performance of the defence team. However, he urged them not to ignore the new evidence. "Al- Megrahi's defence team should investigate claims [by any member of Abu Nidal's group]. If they find new evidence they should demand that the Scottish crown refer the case to the Scottish case review commission."

However, Al-Megrahi's lawyer, Eddie MacKechnie, has a different view. He said he was applying to the European Court of Human Rights to challenge Al-Megrahi's life sentence.

According to him, the allegations about Abu Nidal's involvement offered little new evidence for his client's legal battle.

"I'm not aware of there being any usable evidence arising from this second-hand confession, although I do know that Abu Nidal was thought to have links to the Lockerbie bombing right from the very beginning," MacKechnie said.

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.