Lockerbie bombing suspect in US custody

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

A Libyan man accused of making the bomb which destroyed Pan Am flight 103 over Lockerbie 34 years ago is in United States custody, Scottish authorities have said.

The US announced charges against Abu Agila Masud two years ago, alleging that he played a key role in the bombing on 21 December, 1988.

The blast on board the Boeing 747 left 270 people dead.

It is the deadliest terrorist incident to have taken place on British soil. (...)

Last month it was reported that Masud had been kidnapped by a militia group in Libya, leading to speculation that he was going to be handed over to the American authorities to stand trial.

In 2001 Abdelbaset al-Megrahi was convicted of bombing Pan Am 103 after standing trial at a specially-convened Scottish court in the Netherlands.

He was the only man to be convicted over the attack.

Megrahi was jailed for life but was released on compassionate grounds by the Scottish government in 2009 after being diagnosed with cancer.

He died in Libya in 2012. (...)

A spokesperson for the Crown Office and Procurator Fiscal Service (COPFS) said: "The families of those killed in the Lockerbie bombing have been told that the suspect Abu Agila Mohammad Mas'ud Kheir Al-Marimi ("Mas'ud" or "Masoud") is in US custody.

"Scottish prosecutors and police, working with UK government and US colleagues, will continue to pursue this investigation, with the sole aim of bringing those who acted along with Al Megrahi to justice."

[What follows is excerpted from a report just published on the website of The New York Times:]

The arrest of the operative, Abu Agila Mohammad Mas’ud, was the culmination of a decades-long effort by the Justice Department to prosecute him. In 2020, Attorney General William P Barr announced criminal charges against Mr Mas’ud, accusing him of building the explosive device used in the bombing of Pan Am Flight 103, which killed 270 passengers, including 190 Americans.

Mr Mas’ud faces two criminal counts, including destruction of an aircraft resulting in death. He was being held at a Libyan prison for unrelated crimes when the Justice Department unsealed the charges against him two years ago. It is unclear how the US government negotiated the extradition of Mr Mas’ud.

Mr Mas’ud’s suspected role in the Lockerbie bombing received new scrutiny in a three-part documentary on “Frontline” on PBS in 2015. The series was written and produced by Ken Dornstein, whose brother was killed in the attack. Mr Dornstein learned that Mr Mas’ud was being held in a Libyan prison and even obtained pictures of him as part of his investigation. [RB: A critical commentary by John Ashton on the Dornstein documentary can be read here.] 

“If there’s one person still alive who could tell the story of the bombing of Flight 103, and put to rest decades of unanswered questions about how exactly it was carried out — and why — it’s Mr Mas’ud,” Mr Dornstein wrote in an email after learning Mr Mas’ud would finally be prosecuted in the United States. “The question, I guess, is whether he’s finally prepared to speak.”

After Col Muammar el-Qaddafi, Libya’s leader, was ousted from power, Mr Mas’ud confessed to the bombing in 2012, telling a Libyan law enforcement official that he was behind the attack. Once investigators learned about the confession in 2017, they interviewed the Libyan official who had elicited it, leading to charges.

Even though extradition would allow Mr Mas’ud to stand trial, legal experts have expressed doubts about whether his confession, obtained in prison in war-torn Libya, would be admissible as evidence.

Mr Mas’ud, who was born in Tunisia but has Libyan citizenship, was the third person charged in the bombing. Two others, Abdel Basset Ali al-Megrahi and Al-Amin Khalifa Fhimah, were charged in 1991, but American efforts to prosecute them ran aground when Libya declined to send them to the United States or Britain to stand trial.

Instead, the Libyan government agreed to a trial in the Netherlands under Scottish law. Mr Fhimah was acquitted and Mr. al-Megrahi was convicted in 2001 and sentenced to life in prison. (...)

Prosecutors say that Mr Mas’ud played a key role in the bombing, traveling to Malta and delivering the suitcase that contained the bomb used in the attack. In Malta, Mr Megrahi and Mr Fhimah instructed Mr Mas’ud to set the timer on the device so it would blow up while the plane was in the air the next day, prosecutors said.

On the morning of Dec 21, 1988, Mr Megrahi and Mr Fhimah met Mr Mas’ud at the airport in Malta, where he turned over the suitcase. Prosecutors said Mr Fhimah put the suitcase on a conveyor belt, ultimately ending up on Pan Am Flight 103.

Mr Mas’ud’s name surfaced twice in 1988, even before the bombing took place. In October, a Libyan defector told the CIA he had seen Mr Mas’ud at the Malta airport with Mr Megrahi, saying the pair had passed through on a terrorist operation. Malta served as a primary launching point for Libya to initiate such attacks, the informant told the agency. That December, the day before the Pan Am bombing, the informant told the CIA that the pair had again passed through Malta. Nearly another year passed before the agency asked the informant about the bombing.

But investigators never pursued Mr Mas’ud in earnest until Mr Megrahi’s trial years later, only for the Libyans to insist that Mr Mas’ud did not exist. Mr. Megrahi also claimed he did not know Mr Mas’ud.

Doubts over witness led to fears Lockerbie trial would collapse

[This is the headline over a report in today's edition of The Times. It reads in part:]

Prosecutors in Edinburgh and Washington feared the case against the Lockerbie bomber would collapse if their concerns over the integrity of the star witness were made public, declassified documents have revealed.

The papers show that senior Scottish and US officials privately raised doubts over his reliability and are set to trigger fresh claims of a miscarriage of justice.

Abdul Baset Ali al-Megrahi, a Libyan intelligence officer, was sentenced to 27 years by a Scottish court sitting in the Netherlands after being found guilty of masterminding the 1988 atrocity in which 270 people were killed.

The testimony of Tony Gauci, a Maltese shopkeeper who claimed he sold clothing — believed to have been wrapped around the bomb — to a man resembling al-Megrahi, proved pivotal to securing his conviction in 2001. However, concerns were raised about the “soundness of Gauci’s identification” and the UK and US feared the case would founder if this became known.

The new information, disclosed last night, on the 33rd anniversary of the terrorist attack, has renewed calls for an appeal against al-Megrahi’s conviction.

Hans Koechler, who served as the UN’s independent observer at his trial, said: “I am even more convinced that a miscarriage of justice occurred.”

A report of a meeting between Alan Rodger, then Scotland’s lord advocate, and Robert Mueller, US assistant attorney-general, in Washington in 1992, states: “If it became known we or the US were sending people to check on the soundness of Gauci’s identification that would signal that we did not have a case on which we could confidently go to trial. The US Department of Justice maintained that they could not go to trial on the present identification.”

Gauci was the sole witness to link al-Megrahi directly to the bombing of Pan Am 103, over the town of Lockerbie.

In 2000 he told a panel of judges that al-Megrahi “resembled a lot” a man who bought clothes from his shop. But in 1992 a letter from the Crown Office to Mueller raised doubt. “Further inquiries concerning the identification made by the shopkeeper Gauci could be seized upon by those in Malta, Libya and elsewhere hostile to the conclusions of the investigation.” In 2007 it emerged that the US had paid $2 million to Gauci.

Robert Black, professor emeritus of Scots Law at Edinburgh University, who masterminded the trial, said: “It is now more obvious than ever that the Megrahi conviction is built on sand. An independent inquiry should be instituted into the case by the Scottish government, the UK government or both.”

The Crown Office said it would be inappropriate to comment further while leave to appeal (by al-Megrahi’s son Ali) is being considered by the UK Supreme Court. Police Scotland have confirmed that their investigation remains live. (...)

The confidential documents also show that British officials threatened to veto Malta’s application to join the EU if they did not back their demands over the Lockerbie bombing.

The UK and US insisted that the bomb which exploded over Scotland 33 years ago was loaded on to Air Malta flight KM-180, which left the island for Frankfurt on December 21. They contended it was then taken to London and transferred to Pan Am Flight 103, which blew up over Lockerbie with the loss of 270 lives. The Maltese authorities strongly disputed this version of events, insisting it was technically impossible.

Their stance provoked considerable anxiety. A March 1992 memo to the Foreign Office from diplomatic staff in New York states: “We understand that the Maltese government is considering stating publicly that the allegation that the bomb was planted in Malta was not proven and instructed their ambassador to the UN to explain this to non-aligned members of the Security Council. We hope the Maltese government will think carefully on this and reconsider its position. The US embassy here have told us that their embassy in Valletta has been instructed to take action at the highest level.”

The Maltese were then told the UK would not support their attempt to join the European Community (EC), the precursor to the EU. (...)

The following month British officials noted with satisfaction: “Malta will now comply with mandatory sanctions, while not agreeing with them.”

Guido de Marco, Malta’s justice minister at the time of the bombing, wrote in 2010 shortly before his death that there had been “so much room for error” in the British version of events.

Officials ordered to monitor ‘troublesome’ relatives of victims

An independent investigation into the Lockerbie atrocity launched by bereaved family members posed “great potential for trouble” and should be carefully monitored, government officials were told. (...)

In 2018 relatives of the Lockerbie bomb victims told The Times they had been repeatedly bugged by the security services after official documents suggested that they needed “careful watching”.

The Rev John Mosey, a church minister who lost his teenage daughter, Helga, in the bombing, said that after speaking publicly his phone calls were often disrupted and documents relating to the bombing had gone missing from his computer.

Jim Swire, a GP who became the public face of the campaign to secure an independent inquiry into the atrocity, reported similar intrusions and deliberately included false information in private correspondence, only for it to appear in the press days later.

Swire, whose daughter Flora was killed, said: “I cannot believe that a supposedly decent country could behave in such a way towards grieving people whose only crime was to seek the truth.”

[RB: It is no surprise that those at the top of the Lockerbie prosecution team in both Scotland and the United States were gravely concerned about the quality of the evidence that Tony Gauci would give at Camp Zeist. What is surprising is that the prosecution was prepared to proceed to trial in reliance on that evidence, and that the judges at the trial found that Gauci's evidence amounted to an identification of Abdelbaset al-Megrahi and that it was credible and reliable. Had they not done so, there was insufficient evidence in law for Megrahi to be convicted. 

The most rigorous analysis of Gauci's statements before and during the trial has been provided by Dr Kevin Bannon: https://lockerbiecase.blogspot.com/2017/09/the-centrepiece-of-case-against-megrahi.html. Here is part of what he found:

"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.

"... 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."

Had the newly released documents been available before the most recent appeal, it is possible that the Megrahi family's lawyers could have made use of them in their case. But I see no realistic prospect of a further posthumous appeal. It is now more than ever obvious that the Megrahi conviction is built on sand. What should now happen is that an independent inquiry should be instituted into the Lockerbie case by the Scottish Government, the UK Government or both in tandem. There is much evidence now available that has not been considered in any of the Scottish Lockerbie appeals, in part because of the highly restrictive rules governing what material can be made use of in Scottish criminal appeals. Only with an independent inquiry is there a possibility that the false narrative supported by the shameful conviction of Megrahi can be rectified.]

A matter of sorrow, disappointment and anger

[What follows is a further extract from chapter 15 of The Colonel and I: My Life with Gaddafi by Daad Sharab. Articles about this book can be found in The National here and here. The previous extract on this blog can be read here.]

In 2005, al-Megrahi was transferred to the more relaxed surroundings of Greenock prison, where he served the rest of his sentence. I wasn’t surprised to find that he was depressed. In the early days of his captivity his family relocated to Scotland to be near him, but they encountered hostility from locals and soon moved back to Libya. The separation from his loved ones had clearly affected his mental health and he was not sleeping well. Al-Megrahi, who had five children, was most upset about missing the wedding of his only daughter. He told me that she’d come to Scotland with the marriage papers, for him to sign according to Arab custom. He’d cried for a week after her visit, he told me, adding: ‘Every day I spend here my children are growing up. My daughter was a child when I left Libya and now she is a woman. Please remind President Gaddafi.’

We spoke about al-Megrahi’s journey from Malta, where he worked for Libyan Arab Airlines, to the special court at Camp Zeist in The Netherlands where he was convicted in 2001. He was alleged to have used his position to evade lax security and smuggle the bomb into a suitcase on a flight which connected with Pan Am 103. At the prison I was interested to learn that he’d never met Gaddafi face-to-face and all his dealings, prior to being handed over for trial, had been with Abdullah Senussi in the intelligence office.

Al-Megrahi told me: ‘Senussi came to see me and said to me: “There is an agreement with the West to send you for trial, which the leader says you are free to accept or reject. No one will force you to go and you will be protected by us.”’

He gave himself up for his country but at the time he was sure he would not spend long behind bars, and this was eating away at him. He did not believe he’d received the fair trial that had been promised.

From what I observed, al-Megrahi was well treated and, in return, was a model prisoner. He was able to cook his own Halal food and sometimes used the prison gym, although he devoted most of his spare time to reading and researching his case. Satellite television was installed in his cell so that he could watch Arab stations, delighting other inmates who also had access to a host of new channels. Rather predictably, his unit became known as ‘the Gaddafi café’.

I was allowed to take a camera into my meeting with al-Megrahi at Barlinnie. Returning to Libya to present my report, I first showed Gaddafi photographs of myself with the prisoner. Until I explained his identity, the Colonel seemed to show no recognition of the man at my side. For anyone who still believes Gaddafi personally instructed the Lockerbie bomber, interpret that how you will.

I told Gaddafi of his countryman’s dismay about the passing years and apparent inaction by the Libyan government. He replied: ‘Meet him again. Tell him that I received his message and I will find a solution. Tell him that I promise he will be home soon.’ From that moment, the Colonel did everything possible to keep his case in the spotlight, also funding lawyers for his appeal and paying for investigators to gather new evidence.

When I next visited al-Megrahi, he was a frightened man. He’d become convinced there was a plot to assassinate him, by deliberately leaving the doors to his secure unit unlocked. ‘The other prisoners hate me,’ he told me. If what he was saying was true I knew he had good reason to be terrified, because the Lockerbie bomber was a prize scalp. I promised to pass on his concerns and, to the best of my knowledge he never suffered any harm in either prison.

In Libya he was regarded as a martyr. The Colonel’s wife, Safia, took Al-Megrahi’s wife, Aisha, under her wing. She was treated like a VIP, often appearing at functions and on Libyan television.

I liked al-Megrahi and we kept in touch. He had my mobile telephone number and occasionally I’d receive calls. We’d speak for a few minutes about the case and we exchanged letters. I used to urge him to keep his spirits up, and reassure him that he was always in Gaddafi’s thoughts.

Al-Megrahi was ultimately granted a second appeal, which I’m convinced would have cleared his name. The already weak case against him was gradually being dismantled, as it emerged key witnesses had been paid millions of dollars to testify. Tony Gauci, the Maltese shopkeeper who picked out al-Megrahi as the man who bought the clothes which were found in the suitcase containing the bomb, was discredited. There was doubt he was even in Malta at the time, which would have blown the entire case out of the water.

Few people who have studied the evidence in any depth truly believed al-Megrahi was the bomber, or that Libya was behind the attack. Had the appeal gone ahead it would have been very embarrassing for the West and there was a good chance al-Megrahi would have ended up receiving compensation for wrongful imprisonment. There was also talk in Libya of suing Britain for the economic damage caused by the years of sanctions against Libya. Can you imagine that?

I was shocked when he was diagnosed with prostate cancer in 2008. He was released by the Scottish government on compassionate grounds on 20 August 2009, when he was said to be terminally ill. Six days earlier he withdrew his appeal, explaining: ‘I have been faced with an appalling choice: to risk dying in prison in the hope that my name is cleared posthumously or to return home still carrying the weight of the guilty verdict, which will never now be lifted. The choice which I made is a matter of sorrow, disappointment and anger, which I fear I will never overcome.’ It was just one more political deal over Lockerbie and his early release, after eight and a half years in prison, brought condemnation from the US. ‘We think it is a mistake,’ said President Barack Obama.

Many of the relatives of the Lockerbie victims were also angry but the decision was welcomed by Jim Swire, the doctor whose daughter was among the dead. As usual he gave a measured response, stating: ‘I feel despondent that Scotland and the West didn’t have the guts to allow this man’s second appeal to continue because I am convinced that had they done so it would have overturned the verdict against him.’

A survey in The Times revealed that 45 per cent of British people believed his release had more to do with oil. I don’t disagree. I’d urge anyone who is interested in the case to look at Dr Swire’s website, Lockerbietruth.com.

[to be continued]

Evidence weak, key winesses highly suspicious

[What follows is excerpted from a long article by Dr Jim Swire published today on the Mail Online website:]

... in August [1989], the British and American relatives started a campaign for an inquiry into the bombing and I found myself appointed their British spokesman. I knew I couldn't just sit and think about Flora; I'd go mad. So I began to channel all my emotional energy into a campaign to find the truth.

As my recipe for survival, I searched tirelessly and single-mindedly for details of the political events that had led to the outrage. This led to extensive travels — to Malta, Germany, France, Sweden, the US and Libya — as the trail grew ever more murky.

I also campaigned to tighten up the lax airline security systems that had allowed the bombing to occur. At one point, I even flew to America with a fake bomb in my luggage — with a slab of marzipan doubling for the Semtex. No one challenged me, even when I took an internal flight in the US.

Eventually, in 2001, the former Libyan secret agent Abdelbaset al-Megrahi — a man I passionately believed to be innocent — was convicted of the bombing. The verdict left me in such despair that I fainted in the courtroom. [RB: The only evidence that Megrahi was a Libyan intelligence agent came from Majid Giaka, a witness assessed by the trial judges as wholly devoid of credibility except, for some unexplained reason, on this one single issue.]

I'd watched every moment of the year-long trial, yet to me the evidence was weak, and the key witnesses had seemed highly suspicious.

It was clear by then that the intelligence services were concealing important evidence. Would I go to my grave, I asked myself, without ever knowing who murdered my daughter?

On August 20, 2009, al-Megrahi, who was suffering from prostate cancer, was released from his Scottish jail on compassionate grounds. Later I visited him in Libya as he lay dying.

He clasped my hands. 'I am going to a place where I hope soon to see Flora,' he said. 'I will tell her that her father is my friend.' He died barely six months later.

Even now, in spite of deeply compromised witnesses — two of whom were paid millions of dollars for their testimony — and disproven evidence, our repeated calls for an inquiry into our greatest terrorist atrocity in modern times have been rejected by multiple prime ministers from Margaret Thatcher to David Cameron.

So much evidence points to the bomber being a Jordanian terrorist, but that man was also a valuable CIA asset.

It's my belief that the US and British governments collaborated to pin the blame for Lockerbie on Libya, and that the two countries worked together to ensure any evidence undermining the case against al-Megrahi would never see the light of day.

Has there ever been a greater outrage with less action taken? Do transatlantic national interests trump all other values? Are the dead of Lockerbie not to be weighed in the balance?

Jane and I are now in our 80s — but we will not cease campaigning for the truth about the Lockerbie disaster to be revealed.

THE LOCKERBIE BOMBING: A FATHER'S SEARCH FOR JUSTICE by Dr Jim Swire, published by Birlinn at £14.99

System cannot admit it made mistake with Lockerbie

[Yesterday's decision by the High Court of Justiciary dismissing the posthumous appeal on behalf of Abdelbaset Megrahi receives extensive coverage in UK and overseas media. A selection, courtesy of Google News, can be found here. 

What follows is excerpted from reports by Mike Wade here and here on the website of The Times:]

An attempt by the family of the only man convicted of the 1988 Lockerbie bombing posthumously to clear his name has been rejected by the Court of Criminal Appeal in Scotland.

The family of Abdul Ali Baset al-Megrahi had appealed his conviction after a ruling by the Scottish Criminal Cases Review Commission (SCCRC) that “it was in the interests of justice” that his case was reconsidered.

Mr Anwar said that Ali al-Megrahi, the convicted man’s son, said that his family had been “left heartbroken by the decision of the Scottish courts, (but) maintained his father’s innocence and is determined to fulfil the promise he made to clear his name and that of Libya”.

The family has instructed its legal team to appeal to the UK Supreme Court and an application will be lodged within two weeks. (...)

Megrahi previously lost an appeal against his conviction in 2002. Five years later the SCCRC recommended that he should be granted the second appeal, which he later dropped.

Al-Megrahi insisted in his authorised biography, published in the year of his death, that a Scottish government decision to agree his early release from prison was conditional on his decision to drop his second appeal.

He said that Kenny MacAskill, who was then the Scottish justice secretary, had suggested the deal to a Libyan government official.

In the latest appeal the court was not asked by the SCCRC to consider a tiny fragment of circuit board, believed to have been from the bomb’s timer. This, campaigners insist, was a key piece of evidence that could have cleared al-Megrahi’s name.

After this morning’s decision the al-Megrahi family demanded the release of secret evidence held by the UK government that they believe incriminates others such as Iran and a Syrian-Palestinian group. (...)

In December, on the 32nd anniversary of the bombing, William Barr, the US attorney-general, announced new criminal charges against an alleged bombmaker involved in the atrocity.

Abu Agila Masud, another former Libyan intelligence officer, allegedly admitted to assembling the bomb that blew up the plane as it passed over Lockerbie en route from London to New York. Masud was the third person to face charges in the attack after al-Megrahi and another Libyan, Lamin Khalifa Fhimah, were charged nearly 30 years ago. Fhimah was found not guilty in 2001.

It was Mr Barr who announced the charges against al-Megrahi and Fhimah in 1991, saying at the time: “This investigation is by no means over.” Al-Megrahi’s supporters claim that Mr Barr’s recent intervention weighed heavily on the appeal court judges.

A source said: “For the judges to overturn the conviction would be absolutely momentous and I don’t think they have the stomach for that. William Barr piled on the pressure by announcing new indictments. It was too much of a hot potato for them.”

Mr Anwar said the first ground for appeal — that “no reasonable jury properly directed could have convicted” — was built largely around the evidence of Tony Gauci, who died in 2016.

In the 2001 trial, Mr Gauci, a Maltese shopkeeper, identified al-Megrahi as the man who bought clothes from him that were later packed in a suitcase containing the bomb. After the trial it was disclosed that he had received $2 million from the US authorities.

In his judgment Lord Carloway said the original trial had given due consideration to Mr Gauci’s identification.

Mr Anwar said the second ground of appeal — the failure to disclose information to the defence — hinged on a “compatibility issue” arising from a question relating to a breach of human rights. This will be the basis for the application to the Supreme Court.

[A further article in The Times, headlined System cannot admit it made mistake with Lockerbie, says lawyer who designed first trial contains the following:]

The Scottish court system is unable to acknowledge that a mistake has been made, the lawyer who designed the 2001 Lockerbie trial has said.

Robert Black, emeritus professor of Scots Law at the University of Edinburgh, drew up plans to enable a Scottish court to sit on neutral territory in the Netherlands but when the trial ended he was convinced that he had witnessed a miscarriage of justice.

He said yesterday that the Scottish criminal justice system was unable to acknowledge “a mistake has been made” in the conviction of Abdul Baset al-Megrahi and it was “a matter of grave concern” that the most recent appeal had been so narrowly restricted to certain legal areas. The Scottish Criminal Case Review Committee allowed al-Megrahi’s posthumous appeal on only two grounds: that the verdict had been unreasonable and that some evidence had not been disclosed to the defence.

Four other grounds for appeal were rejected by the committee, including evidence about a fragment from a circuit board and a theory that the suitcase that contained the bomb had not been loaded onto an aircraft in Malta.

The Crown argued that the circuit board, part of a timing device, was one of many sold to the Libyan government by Mebo, a Swiss company. It was found in the remains of a shirt collar, which in turn led to a shop in Malta owned by Tony Gauci. Campaigners for al-Megrahi say forensic analysis has shown the circuit board was coated in pure tin and not in a tin-lead alloy, the only kind supplied by Mebo. Independent scientists, consulted by the Crown, had noticed the difference but maintained the tin fragment and the tin-lead amalgam were “similar in all respects”.

Professor Black also cited evidence the bomb suitcase was put on at Heathrow before luggage from Malta arrived.

The enduring scandal of al-Megrahi’s conviction

[Don't call this a conspiracy theory is the heading over a letter published in The Times today. It reads as follows:]

Sir, Magnus Linklater (“Why I cannot believe Lockerbie conspiracies”, Scottish edition, Dec 21) has cast as conspiracy theorists those of us who believe that Abdul Baset Ali al-Megrahi was wrongly convicted. Yet in making his case he is guilty of a common failing of conspiracy theorists — misrepresenting certain facts and sidestepping others. He suggests that we believe that a fragment of circuit board was substituted for the one that implicated al-Megrahi and Libya. Had he read my biography of al-Megrahi he would know that I knocked down that claim. He would also know that I set out the scientific evidence — much of which had been produced by prosecution experts — that disproved the prosecution’s central claim that the fragment originated from a batch of timers that was supplied to Libya. Mr Linklater also ignores powerful evidence, most of which was unavailable to al-Megrahi’s trial judges, that the Lockerbie bomb began its journey at Heathrow, rather than, as the prosecution claimed, at Luqa airport, Malta. The enduring scandal of al-Megrahi’s conviction is that the prosecution failed to release numerous items of exculpatory evidence to the defence. Whether that was a result of a cock-up or a conspiracy is moot. What matters is that al-Megrahi was denied a fair trial.

John Ashton

Author, Megrahi: You Are my Jury

Lockerbie files show Scots police doubted key witness

[This is the headline over a report in today's edition of The Times. It reads in part:]

Scottish detectives distanced themselves from a key Lockerbie witness, it has emerged, casting further doubt on the conviction of the only person ever found guilty over the attack.

Abdul Majid Giaka, a Libyan agent turned CIA informant, gave evidence that Abdul Baset Ali al-Megrahi collected a brown Samsonite suitcase from a Maltese airport the day before the 1988 bombing.

However, newly declassified files show that Scottish officers investigating the case admitted that his involvement had put them in a “delicate position”.

“The ‘birth’ of that witness was totally the making of the Americans,” they said in a document from 1991 that was marked secret.

It emerged this week that American prosecutors were seeking the extradition of the Libyan operative Abu Agila Mohammad Masud, accusing him of making the bomb that blew up Pan Am Flight 103, killing 270 people. He worked under Colonel Gaddafi and is serving a ten-year sentence for other crimes in a Tripoli prison.

The FBI is also believed to be interested in Abdullah Senussi, Gaddafi’s brother-in-law and security chief, who is suspected of overseeing the bombing and is in prison with Masud.

Lawyers carrying out a posthumous appeal on behalf of al-Megrahi, who died in 2012, say that the case against him was first made by Mr Giaka, whom they describe as “discredited”. They say that any charges levelled against Masud would fall apart if al-Megrahi’s conviction was overturned.

A report by the joint intelligence group of Dumfries and Galloway Constabulary has been declassified and placed in the National Archives at Kew. The dossier, seen by The Times, dates to October 1991, when reports of Mr Giaka’s emergence as an American asset began to circulate.

The document, written by Detective Chief Superintendent Stuart Henderson, the senior investigating officer, says: “The development of the ‘new witness’ has placed us in a delicate position. The ‘birth’ of that witness was totally the making of the Americans. The Americans must be ‘as one’ with us in anything we propose to expose to the Maltese.”

The document also mentions Tony Gauci, a Maltese shopkeeper whose evidence played a decisive role in al-Megrahi’s conviction at a Scottish court convened in the Netherlands in 2000. It states: “The Americans are keen to approach the witness Tony Gauci and ‘ascertain’ if he feels insecure or otherwise. Their intention is to take Gauci to America.” (...)

However, in 2005 Lord Fraser of Carmyllie, the former lord advocate who drew up the indictment against al-Megrahi, expressed doubts over Gauci’s testimony, describing him as “not quite the full shilling”. Last month appeal judges were told that Mr Gauci had asked for money in return for giving evidence.

The court was also told that Mr Gauci had been shown a photograph of al-Megrahi before he picked him out in an identity parade.

Aamer Anwar, the lawyer representing the al-Megrahi family, said: “These documents shine a light on dark and desperate actions taken by the US intelligence services over Lockerbie.

“We can only surmise that the ‘new witness’ who had been ‘birthed’ by the Americans was Abdul Majid Giaka.

“Megrahi’s family understands he was first accused of being involved in a conspiracy by Giaka. There has always been a suggestion that Giaka may have fabricated matters to make himself more valuable to the Americans. If the conviction of the late Megrahi was overturned then the case against Abu Agila Masud is likely to fall apart.”

John Holt, a former CIA agent who worked closely with Mr Giaka, claimed that the informant was a fantasist and an opportunist.

“I handled Giaka in 1989 for a whole year during which he never mentioned Libyan involvement in the bombing,” he said. “He was a car mechanic who was placed by Libyan intelligence as Malta airport office manager with Libyan Arab Airlines and had very little information about anything to do with bombs or Lockerbie.

“He felt humiliated by Megrahi, who was an official with the Libyan intelligence service, so the CIA knew he had a grudge.”

Mr Holt claimed that Mr Giaka changed his story in 1991 after fearing that his cover had been blown.

This month Mr Holt said: “When he was told he was useless to our intelligence services he began making up stories. It was only when he needed desperately to flee Libya in 1991 that he started telling the CIA things relevant to the Pan Am bombing, like hearing Megrahi and another man talking about a plan to bomb an American airliner.” (...)

Who made the bomb? The full truth about Lockerbie is still not being told

[This is the headline over a long report by David Horovitz published today on the website of The Times of Israel. It reads in part:]

Megrahi went to his grave protesting his innocence, and his family continues to fight to clear his name. This week, Scotland’s highest criminal court is hearing his relatives’ latest appeal against his conviction, after an independent review determined that he might have been the victim of a miscarriage of justice. Among other flaws, the defense is highlighting that the Maltese shopkeeper who identified Megrahi as the man who purchased the incriminating clothing in the suitcase, and whose evidence has always been controversial, was paid for his testimony, a fact that was not disclosed to the defense in the original trial.

I have followed the Lockerbie case since the time of the bombing, when I was working for The Jerusalem Post as its London correspondent, and when I happened to see material in the early stages of the investigation that pointed not to Col. Gaddafi’s Libya, but rather to Iran and the Palestinian terrorist organization PFLP-GC — the Popular Front for the Liberation of Palestine-General Command. Earlier in 1988, the US Navy’s guided-missile cruiser USS Vincennes had shot down an Iran Air Airbus in the Persian Gulf, killing all 290 passengers and crew, in a tragic case of mistaken identity. The US said it had misidentified the civilian airliner as a fighter jet. Iran had promised to avenge the deaths. Ayatollah Khomeini had vowed that the skies would “rain blood.” (...)

Just weeks before the Lockerbie blast, four devices strikingly similar to the one that would soon be utilized to such devastating effect on Flight 103 had been found in the possession of PFLP-GC members arrested in a Frankfurt suburb. That PFLP-GC cell was reported at the time to have been planning to blow up planes heading to the US and Israel. Its bombs, like those the PFLP-GC had used in the past, and like the Lockerbie device, were detonated by a barometric pressure device and timer, activated when a plane reaches a certain altitude. A fifth bomb in the Frankfurt cell’s possession was said to have disappeared; this was presumed to be the device that blew up Flight 103.

The Lockerbie investigators were initially following these leads; then they shifted their focus to Libya. In 2003, Gaddafi accepted responsibility for the bombing — though he denied ordering it — and paid compensation to the victims’ families, in accordance with UN demands for the lifting of sanctions on his country.

Almost seven years ago, a colleague of mine at The Times of Israel noticed that a man named Marwan Khreesat, a Jordanian national, maintained an Arabic-language Facebook page in which he had taken to posting pictures of the Lockerbie bombing. Khreesat was the PFLP-GC’s bombmaker-in-chief, the alleged maker of those barometric-pressure devices. He was one of those who was arrested by the German authorities in Frankfurt, only to be inexplicably released soon afterward. Now he was promising to reveal the truth about Lockerbie — to “write about Pan Am 103,” including “who was on the flight and the circumstances of the incident.”

In his posts, Khreesat also connected himself to the bombing of an El Al plane from Rome to Tel Aviv in 1972, describing that attack as “a challenge to the Israeli intelligence agents who are responsible for searching luggage and everything that goes on a plane.” The 1972 El Al bomb — another barometric-pressure device — had been hidden in a record player that two British women were duped into carrying by two Arab men who were later arrested. Although the bomb exploded, the pilot was able to make an emergency landing. “It was a successful blow against the Israeli enemy,” Khreesat wrote in a March 14, 2014, Facebook post, in which he also described spending time with PFLP-GC chief Ahmed Jibril in Rome as they waited for the attack to unfold.

In several 2013-4 Facebook posts relating to Lockerbie, Khreesat recalled his arrest two months before the bombing. He posted pictures of the destroyed cockpit of the 747 after the explosion, the painstakingly reconstructed parts of the plane wreckage, and a radio-cassette recorder like the one that held the bomb. He also asked a series of unanswered questions about the attack. “Who did the operation?” he mused in a post on the 25th anniversary of the blast. “Israel? Iran? Libya? Who carried the Toshiba explosive device [in which the bomb was hidden]?… Did the explosive device come from Malta airport like the American intelligence agencies say?… When will these riddles be solved.”

This week’s appeal by the Megrahi family was green-lighted by the Scottish Criminal Cases Review Commission in part because of “nondisclosure” of evidence to the defense team in the original trial. Some of that documentary evidence is widely reported to have been provided by Jordan’s late King Hussein and to not only to implicate the PFLP-GC in the Lockerbie atrocity, but to specify that Marwan Khreesat built the bomb.

On Friday, however, the head of the Scottish judiciary, Lord Carloway, ruled that the documents must still be withheld on the grounds of national security. Accepting a secrecy order signed by British Foreign Secretary Dominic Rabb [sic], Carloway explained, “[Rabb’s] clear view is [that the release of the documentation] would cause real harm to the national security of the UK because it would damage counter-terrorism liaison and intelligence gathering between the UK and other states… The documents had been provided in confidence to the government. Their disclosure would reduce the willingness of the state, which produced the documents, to confide information and to co-operate with the UK.”

All manner of conspiracy theories surround the Lockerbie bombing, some of which do not rule out the involvement of Libya and Megrahi, most of which revolve around the fact that nobody has been prosecuted for making the bomb, and many of which focus on the PFLP-GC and Marwan Khreesat.

Over the years, I’ve had the opportunity to raise the question of the Lockerbie bombing with several former Israeli intelligence figures, who were in office at the time of the bombing and well aware of the activities of the PFLP-GC at the time. Two of them insisted without elaboration that “Libya did it” and brushed away further questions. A third, by contrast, told me it was “clear that Jibril prepared the operation.”

Israel was “listening in” on the PFLP-GC during the months prior to Lockerbie, he said, and hearing about preparations for what “we thought was a plan to target an Israeli plane.” There was a “huge alert” in the Israeli security establishment because of indications that the PFLP-GC was about to strike, this source went on. “We told the British and the Americans what we knew, which was that there was an intention to hit an Israeli plane… We didn’t warn about a British or an American plane because we didn’t know that,” he said.

The new appeal hearing is expected to continue until Friday, with a ruling at a later date. “It is submitted in this case that no reasonable jury, properly directed, could have returned the verdict that it did, namely the conviction of Mr Megrahi,” the defense lawyer Claire Mitchell told the judges on Tuesday. But that argument will be harder to make without those “Jordanian” documents, which the defense has said are central to the appeal. If his relatives fail to have Megrahi’s conviction overturned, their allegation of a miscarriage of justice will linger.

Marwan Khreesat died in 2016.

His Facebook page is still online.

But he never did tell the truth about Lockerbie.

Fourth anniversary of death of Tony Gauci

[The death of Tony Gauci, the Maltese shopkeeper whose "identification" of Abdelbaset Megrahi was crucial to his wrongful conviction, was announced on this date four years ago. What follows is a report in the Maltese newspaper The Times:]

Tony Gauci's death means mystery might remain unresolved

Tony Gauci, the Maltese man who determined the outcome of the Lockerbie trial, has died,Times of Malta is informed. 

Mr Gauci, who lived in Swieqi, is believed to have died of natural causes. 

He had pointed at Abdelbaset al-Megrahi as the man who had bought the clothes from his Sliema shop, which were said to have been wrapped around aircraft which killed 270 people over the Scottish town of Lockerbie in December 1988. 

This evidence tied together the prosecution's thesis, that the bomb loaded on to the doomed Pan Am flight at Heathrow Airport had first left from Malta before being transferred via Frankfurt. But serious doubts were raised about Mr Gauci’s testimony over the years.

Libyan national Al-Megrahi died in 2012 with the tag 'the Lockerbie bomber’ despite the fact that the Scottish Criminal Cases Review Commission had described Mr Gauci as an “unreliable” witness, putting the onus of the responsibility of the UK’s worst terrorist attack in doubt.

The SCCRC said the Crown prosecution suppressed from Megrahi’s defence team statements showing how much Gauci changed his mind about crucial details over the years.

Documents published later had revealed that the lead investigator in the Lockerbie bombing personally lobbied US authorities to pay Mr Gauci and his brother Paul at least $3 million for their part in securing the conviction of Al-Megrahi.

Mr Gauci never spoke publicly about the case and maintained the media silence that characterised his role in the whole affair. He was last approached for comment for an edition of Times Talk in November 2013.

Mr Gauci's death signals the end of a key witness to a case which continues being fought legally by relatives of victims who believe Mr Al-Megrahi was innocent. 

[A report in The National two days later contained the following:]

...in 2007, the Scottish Criminal Cases Review Commission (SCCRC) found six grounds where it was believed a miscarriage of justice may have occurred, paving the way for a second appeal.

The commission questioned evidence about the date on which the prosecution said the clothes were bought from Gauci’s shop.

The SCCRC also said evidence that cast doubt on Gauci’s identification of Megrahi had not been made available to the defence – in breach of rules designed to ensure a fair trial.

There was also evidence that four days before he identified Megrahi, Gauci had seen a picture of him in a magazine article about the bombing.

Megrahi dropped a second appeal in 2009 before being released due to his terminal prostate cancer.

In his last interview, he insisted he had “never seen” Gauci and had not bought clothes from him. (...)

Aamer Anwar, the Glasgow lawyer who acts for the Megrahi family, told The National: “Tony Gauci went to his grave knowing that he had always been accused of falsifying his evidence to convict al-Megrahi who until his dying breath maintained he was innocent.

“It is sad that we were unable to test his ‘unreliable identification’ evidence at appeal, however the Megrahi family remain determined to return to court one day to overturn the conviction of their father Abdelbaset al-Megrahi.”

George Thomson, who worked for Megrahi’s defence team, said the Libyan would look forward to meeting his accuser.

He told The Times of Malta: “When I last spoke to Baset on his deathbed he spoke of the day that he and Tony might meet in another place, where Tony would have to face him and answer for the lies he said against him.

“I personally hope that Tony is in a better place and that he is now at peace because he must have led a tortured life knowing that he had jailed an innocent man for money.”

[The role of Tony Gauci will feature prominently in the appeal by the Megrahi family that is due to commence in the High Court of Justiciary on 24 November 2020.]

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.