Alternative take: Dr Jim Swire, father of Lockerbie victim Flora Swire

This is the title of an article in today's issue of The Scotsman. It starts:

"As the Lockerbie case progressed, the prosecution found itself in possession in 1996 of material that Mr [David] Miliband now claims cannot be divulged to the defence.

"This occurred originally, it is said, because at the time, Scotland's Lord Advocate was ex officio a member of the UK government.

"Mr Miliband has now taken out Public Interest Immunity certificates (PIIs) to 'protect' the documents from release to..."

The article is in the premium (ie pay to view) section of The Scotsman's website, and so I am not in a position to quote more of it or to summarize its contents since I resolutely refuse to pay for access to the newspaper (a) because I am a Scot and (b) because this once-great newspaper has in recent times declined disastrously.

The full article (if you are a subscriber) can be read here.
The readers' comments are of interest, even if you cannot access the full text of Dr Swire's article.

The dead cannot cry out for justice

[What follows is excerpted from a long article published on this date in 2009 in the Malta Independent:]

The outrage expressed when the release of al-Megrahi was announced should not overshadow the memory of the trial that condemned and sentenced him.

Abdelbaset Ali Mohamed al-Megrahi has never stopped reiterating his innocence and non-involvement in the blowing up of Pan Am Flight 103 over Lockerbie on 21 December 1988. (...)

As Ian Ferguson, author of the book The Hidden Scandal of Lockerbie, points out: “From the start, there was a determination to try to prevent the appeal being heard. It opened but never got off the ground, with stall after stall, as each month al-Megrahi weakened with the cancer that was killing him. There was rejoicing in the Crown Office in Edinburgh when he was released and the appeal abandoned.”

In this regard, it should be ensured that beyond any hindrance or censorship, all assistance and co-operation should be extended to al-Megrahi to enable him to deservedly affirm his innocence.

The Scottish Criminal Cases Review Commission (SCCRC) had already granted him a second appeal. His legal team has been trying to see the secret papers, which they believe could help overturn his conviction. However, Foreign Secretary David Miliband has signed a public interest(?) immunity certificate, claiming that making the document public could cause “real harm” to national security and international relations. Of course, and stopping a convicted man from proving his innocence! Is this intended to thwart any redress or amends by al-Megrahi?

When only selected evidence is available and the defence does not even get to see parts of it, then the conviction becomes unsound. (...)

It was more than nauseating to note how some dazed or perhaps swayed media played upon the trumped-up assumption of “worldwide condemnation” at his release. Oh no, nothing of the sort! What we see here is just a cynical US condemnation and filthy politics. Playing politics in this matter is the politics of the gutter!

The UK and the US have their differences regarding law and justice that they may not agree on. The elaborate and shadowy politics behind the Lockerbie trial, including these same American families that are complaining about al-Megrahi’s release, also took blood money from Ghaddafi in a $2 billion dollar settlement.

Do you not remember that US military personnel, responsible for the shooting down of Iran Air flight 655, which killed all 290 passengers including 66 children, received a medal? What remuneration did the families of the victims receive? (...)

So, US Secretary of State, Hilary Clinton reiterated her opposition and condemnation to the release of the alleged Lockerbie bomber in a strongly-worded message to the Scottish government. She stressed that it was “absolutely wrong” to release Megrahi. What is she afraid of? Could it be the absolute truth?

Here I would dare to suggest two main reasons why the US administration is highlighting its opposition to this release.

Firstly, it is more than apparent to the world at large that America cannot accept a decision not in line with its policy and made by another country and is prepared to spout its wrath against it.

Secondly, according to Al-Megrahi’s lawyer, he ran the “very real risk” of dying before his appeal was heard, after a judge’s illness caused further delay in the case. It was evident that his release would eliminate this immediate danger and raise the possibilities for a final honest outcome of this affair.

Perhaps we in Europe ought to ask if the USA is indeed our ally any more. It is not customary for allies to boycott each other when they disagree.

On the other hand, high profile supporters, including Nelson Mandela and Michael Mansfield QC among others, strongly maintain that al-Megrahi is innocent.

What did the Americans want? Perhaps that he should be left to die in prison and to have the dead body handed to the US so that it could “execute” it?

Although the political furore over the release of al-Megrahi mainly centred around three countries, namely Britain, the US and Libya, there may well have been covert dealings, until now kept secret, which had been hatched in other countries. New and compelling evidence has now been released which could now well prove his innocence.

In a memo dated 24 September 1989, and reproduced in the appeal submission, the US Defence Intelligence Agency (DIA) states: “The bombing of the Pan Am flight was conceived, authorised and financed by Ali-Akbar Mohtashemi-Pur, Iran’s former Interior Minister. The execution of the operation was contracted to Ahmad (Jibril), Popular Front for the Liberation of Palestine General Command (PFLP-GC) leader, for a sum of $1 million.”

The prosecution case was that al-Megrahi took the bomb, wrapped in clothes bought from a shop in Malta, to the island’s Luqa airport, where it was checked in and then transferred on to Pan Am flight 103.

A key witness against al-Megrahi was Maltese shopkeeper Tony Gauci, who owned Mary’s House from where the police say the garments were bought.

Also, central to al-Megrahi’s conviction was the evidence of this Maltese shopkeeper, who claimed that al-Megrahi had bought clothes from him allegedly found in the suitcase bomb. Lawyers were due to claim that Gauci was paid over $2 million by US investigators for his evidence, which followed more than 20 police interviews, and that many of the often wildly conflicting statements taken on each occasion were withheld from the defence

But his police statements are inconsistent, and prosecutors failed to tell the defence that shortly before he attended an identity parade, Mr Gauci had seen a magazine article with a picture of al-Megrahi, and speculated that he might have been involved. The BBC programme has discovered that the Scottish police knew Mr Gauci had looked at al-Megrahi’s photograph just days before the line-up.

But, contrary to police rules of disclosure designed to ensure a fair trial, this crucial information was not passed on to the defence.

Besides that, if it were proven that he was rewarded, his testimony would cast doubt on its value.

The SCCRC has thoroughly checked out the claims and found he received “a phenomenal sum of money” from the US. It was reported that Gauci is understood to be planning to use his newfound wealth to fund a move to Australia with his brother, Paul, who was also on the witness list but was not called to give evidence.

Professor Emeritus Robert Black of Scots Law at the University of Edinburgh, “architect” of the Scottish court on Dutch soil (and himself from Lockerbie) said of the original conviction: “I thought this was a very, very weak circumstantial case. I am absolutely astounded, astonished. I was extremely reluctant to believe that any Scottish judge would convict anyone, even a Libyan, on the basis of such evidence.”

He said in 2005 that al-Megrahi’s conviction was “the most disgraceful miscarriage of justice in Scotland for 100 years.” “Every lawyer who has ... read the judgment says ‘this is nonsense’. It is nonsense. It really distresses me; I won’t let it go.”

It is no wonder that some people were hoping that al-Megrahi would die before certain witnesses were called. The release on compassionate grounds is a blessing for them, as much as it was for him.

The key lesson is that the human rights of all parties need to be at the centre of the legal process and decision making if the public interest is to be served, and if justice is to be done and seen to be done.

The dead cannot cry out for justice; it is a duty of the living to do so for them.

Judges back Lockerbie evidence suppression

[This is the headline over a report published on the website of The Guardian on this date in 2008. It reads in part:]

A legal battle to release a secret intelligence report which could free the Libyan man convicted of the Lockerbie bombing is to continue after judges ruled the foreign secretary had the right to suppress the document.

The ruling from the Lord Justice General, Lord Hamilton, dashes the hopes of Abdelbaset Ali Mohmed al-Megrahi that he would be quickly released.

It emerged last year that two secret papers had been given to the UK by a foreign government in September 1996, four years before al-Megrahi's trial began, but had never been disclosed to his defence team even though Scottish police and prosecutors had seen them.

Last July, the Scottish criminal cases review commission said that one of those documents raised further doubts about his guilt, and had played a key role in its decision to return al-Megrahi's conviction to the appeal court. It refused to disclose its contents or origin, however.

The Libyan's lawyers claim the document is essential to his appeal and are contesting the decision by the foreign secretary, David Miliband, to grant public interest immunity suppressing the papers on behalf of the British government.

The lawyers told three appeal judges last month that only the Lord Advocate, Elish Angiolini, had the right to withhold papers in a Scottish court and she had said she had no objection to them being released.

However, the judges ruled that the Lord Advocate had said that disclosure of those papers was a decision for the foreign secretary – an opinion they upheld. Al-Megrahi's lawyers will make a further attempt to force disclosure of the documents later this summer.

Miliband has told the court that releasing either document would cause "real harm" to the UK's national security, its counter-terrorism efforts and its relations with the country which supplied the papers.

Government lawyers have denied claims it came from the US government or the CIA, but said the foreign government involved had refused requests to release it.

Al-Megrahi, then a sanctions buster for Colonel Muammar Gadafy, was convicted in 2001 of murdering 270 passengers, crew and townspeople after planting a suitcase bomb in Malta which eventually blew up Pan Am Flight 103 over Lockerbie, the small town in south west Scotland.

Judges back Lockerbie evidence suppression

[This is the headline over a report published on the website of The Guardian on this date in 2008. It reads as follows:]

A legal battle to release a secret intelligence report which could free the Libyan man convicted of the Lockerbie bombing is to continue after judges ruled the foreign secretary had the right to suppress the document.

The ruling from the Lord Justice General, Lord Hamilton, dashes the hopes of Abdelbaset Ali Mohmed al-Megrahi that he would be quickly released.

It emerged last year that two secret papers had been given to the UK by a foreign government in September 1996, four years before al-Megrahi's trial began, but had never been disclosed to his defence team even though Scottish police and prosecutors had seen them.

Last July, the Scottish criminal cases review commission said that one of those documents raised further doubts about his guilt, and had played a key role in its decision to return al-Megrahi's conviction to the appeal court. It refused to disclose its contents or origin, however.

The Libyan's lawyers claim the document is essential to his appeal and are contesting the decision by the foreign secretary, David Miliband, to grant public interest immunity suppressing the papers on behalf of the British government.

The lawyers told three appeal judges last month that only the Lord Advocate, Elish Angiolini, had the right to withhold papers in a Scottish court and she had said she had no objection to them being released.

However, the judges ruled that the Lord Advocate had said that disclosure of those papers was a decision for the foreign secretary – an opinion they upheld. Al-Megrahi's lawyers will make a further attempt to force disclosure of the documents later this summer.

Miliband has told the court that releasing either document would cause "real harm" to the UK's national security, its counter-terrorism efforts and its relations with the country which supplied the papers.

Government lawyers have denied claims it came from the US government or the CIA, but said the foreign government involved had refused requests to release it.

Al-Megrahi, then a sanctions buster for Colonel Muammar Gadafy, was convicted in 2001 of murdering 270 passengers, crew and townspeople after planting a suitcase bomb in Malta which eventually blew up Pan Am Flight 103 over Lockerbie, the small town in south west Scotland.

He has been ordered to serve at least 27 years for the bombing.

[RB: A similar report on the BBC News website can be read here.]

Bombshell book

[This is the headline over an article published in the current issue of Private Eye (No 1421), page 37. It reads as follows:]

If former Scottish justice minister Kenny MacAskill believed his new book about the Lockerbie bombing would end the controversy surrounding the conviction of Libyan Abdelbaset al-Megrahi, he was wrong.

The Lockerbie Bombing: The Search for Justice, provides an intriguing insight into the double dealing of the US and UK governments, whose ‘deals in the desert’ with Colonel Gaddafi were agreed against the backdrop of Megrahi’s release ‘on compassionate grounds’. But in the book MacAskill demolishes a central pillar of the prosecution case against Megrahi, the only man convicted of the atrocity. He concludes that Megrahi did not, as claimed, buy the incriminating clothes used to pack the bomb suitcase from a Maltese shop – the direct link between Megrahi and the bomb.

He then renders the conviction doubly unsafe by revealing the contents of material which has been kept secret under a controversial public interest immunity (PII) certificate signed in 2008 by the then Foreign Secretary, David Miliband.

Then known only to originate from a foreign country, the Scottish Criminal Cases Review Commission (SCCRC) had identified the material as potentially important to Megrahi’s defence. The Crown’s failure to disclose it at Megrahi’s trial in 2000 was one of the commission’s grounds for granting the appeal. Under the PII, the commission could not reveal the contents, leading to accusations that the government was involved in a cover-up. (Eye 1205).

MacAskill, who signed Megrahi’s release back to Libya, now reveals that the document in question was a letter from the late King Hussein of Jordan to then prime minister John Major, blaming the atrocity on the Popular Front for the Liberation of Palestine – General Command (PFLP-GC). Eye readers will recall that members of the group were the original suspects. Some had been caught in Germany two months before Lockerbie, apparently preparing an airliner attack.

Bomb maker Marwan Khreesat later confessed to having built five bombs designed to detonate at altitude. Two were concealed within Toshiba radio-cassette players, one of which was never recovered. The Lockerbie bomb was also contained within a Toshiba radio cassette player - although a different model. Suspicions of PFLP-GC involvement were strengthened because Khreesat’s bombs were designed to detonate between 30 and 50 minutes after takeoff. The Lockerbie bomb on Pan Am flight 103 exploded 38 minutes after the airliner left Heathrow on 21 December 1988.

Despite admitting building aircraft bombs, Khreesat was freed by a German court a fortnight after his arrest and allowed to return to his native Jordan. He was later revealed to be an informant for the German and Jordanian intelligence services, which added weight to King Hussein’s letter to prime minister Major.

MacAskill seeks to downplay the letter’s significance, saying it was sent soon after Lockerbie and before the police investigation switched focus from the PFLP-GC to Megrahi in 1990. This is not the case. It emerged during the appeal hearings that the letter was sent in 1996 – long after the investigation had changed tack.

In his book MacAskill thus underscores two of the six grounds which the SSCRC decided rendered the conviction unsafe. In an interview on Scottish television he even conceded it may ‘unsafe’, but said he was still convinced of Megrahi’s guilt. Not only is some of his reasoning based on untested assertions, untested evidence and in places on the discredited testimony of CIA supergrass Majid Giaka, but as a lawyer he should know that is not how the criminal justice system works.

The book has led to calls for a further appeal against conviction and for a far reaching inquiry. Police in Scotland are already investigating allegations of criminal misconduct made by the Justice for Megrahi campaign against some of those involved in the Libyan’s conviction – including allegations of withholding evidence from the defence. The book now raises questions about who else shared MacAskill’s doubts over the safety of elements of the case and for how long.

MacAskill may himself yet be in hot water over the breach of the PII certificate. The Foreign and Commonwealth Office said it was still considering the contents of his book.

Lockerbie and the search for truth

[This is the headline over an article by Dr Morag Kerr just published in the first issue of the new online magazine iScot (pages 11 to 18). The following are excerpts. The original online version contains helpful photographs and illustrations:]

The summer of the independence campaign saw a few important news items relegated to minor footnotes, not least in June when the application for a new appeal against the conviction of Abdelbaset al-Megrahi for the Lockerbie bombing was finally submitted to the Scottish Criminal Cases Review Commission. 

The application has been the culmination of a huge amount of work not just by lawyers but by many people interested in the case and it concentrates on four main aspects.

Firstly, the contention that the identification of Megrahi as the man who bought the clothes packed in the suitcase with the bomb was fatally flawed. 

This point was the centrepiece of the previous appeal which was abandoned when Megrahi was granted compassionate release. Although the trial judges described the identification as “not absolute” they controversially decided he had been the purchaser anyway. Information acquired by the SCCRC in 2006 however showed that the clothes had been bought on a day when there was no evidence he had been anywhere near the shop in question. 

Secondly, the application highlights an entirely new analysis of theforensic evidence, never beforepresented in court. The new evidence shows the suitcase containing the bomb was one which was seen in the baggage container at Heathrow airport an hour before the connecting flight from Frankfurt landed. This utterly destroys the Crown case, which relied on the bomb suitcase having been transferred from the Frankfurt flight. 

Then there is the evidence relating to the metallurgical composition of the fragment of printed circuit board designated PT/35b. This fragment was believed to be part of the timing mechanism of the bomb, and the Crown alleged that it came from a digital timer of a type made exclusively for the Libyan military, of which only 20 had ever been delivered. 

However, a crucial discrepancy in the analysis of the metallic coating on the circuitry demonstrates that PT/35b was not made by the manufacturer who made all the items supplied to Libya. 

And lastly, the sheer amount of evidence not disclosed to the defence which would have been very helpful to the accused and in some cases exculpatory. This covers not just the infamous “secret intelligence report” which David Miliband slapped a Public Interest Immunity Certificate on in 2008, but a number of other documents including one which would have allowed the defence to understand the problem with the metallurgical analysis of the PCB fragment at the time of the original trial. 

This case has the distinction of being the first in Scotland in which published books have formed part of an application. Selected chapters from John Ashton’s 2012 (...) Megrahi: You are my Jury, have been submitted to the SCCRC in support, as well as the entirety of my own 2013 book, Adequately Explained by Stupidity? 

The initial draft of the application was prepared by Robert Black, emeritus professor of Scots Law at the University of Edinburgh, who has a long standing involvement in the case and has believed for many years that the conviction was a miscarriage of justice. In a highly unusual move it is being submitted in the names of about two dozen relatives of Lockerbie victims, in addition to several close relatives of Megrahi himself. Aamer Anwar, the campaigning human rights solicitor and well-known advocate of independence is acting on their behalf. 

Prof Black commented that any one of the four points enumerated above, if upheld, would be sufficient to have the conviction overturned. He also notes that the second point, the one relating to the arrangement of the luggage in the baggage container, is in a different category from the others. 

To have a conviction overturned it is sufficient to show that a miscarriage of justice may have occurred. That’s not quite the same as proving that the accused didn’t do it, as some exonerated defendants have found to their cost. In England at least, in order to be awarded compensation for wrongful imprisonment the appellant must be shown to be “clearly innocent”. 

The suitcase positioning fulfills that criterion by showing the crime could have happened at Heathrow airport, in the afternoon, at a time when Megrahi was verifiably in Tripoli and not at Malta's Luqa airport in the morning when he was catching his flight home. It provides him with a complete alibi. (...)

If this point of appeal is upheld, the Crown Office will be in an invidious position. The charade of the Malta crime-scene will no longer be tenable. The investigation will have been shown to have been off the rails from its earliest weeks, and to have pursued a red herring down a blind alley rather than seeking the real terrorists in London that afternoon. Undoubtedly some faces will be very red. 

However, there’s a long way to go before that point is reached. First, the SCCRC have to agree that there are indeed grounds forappeal contained within the submission it has received. Not only that, a new hurdle has to be cleared which didn’t exist at the time the previous leave to appeal was granted in 2007. 

As part of the legislation arising out of the Cadder case (relating to the right of a suspect to have a lawyer present during questioning) a provision was introduced into Scots Law requiring not only that there should be grounds for believing that a conviction might amount to a miscarriage of justice, but that there must be compelling reasons to override the assumed desirability of having “certainty and finality” at the end of a legal process.

While it’s true the legal system had no desire to be swamped by hordes of lowlifes appealling petty theft convictions because they had been denied access to a lawyer when  they were first questioned by police, this is a big deal with far wider ramifications. As it now stands, Scots Law can declare that it doesn’t matter if there are compelling grounds for believing you were wrongly convicted of murder, because it’s more important that a line should be drawn. And pity help you if you’re on the wrong side of that line. 

Not only does the SCCRC itself have to be satisfied that “certainty and finality” should be overruled, the appeal judges themselves have the option of refusing to hear the appeal if they disagree with the SCCRC on this point. 

The Scottish government has repeatedly declared that the only place to resolve the ongoing running sore of the doubts over the Lockerbie conviction is in the courts, by way of another appeal. Ministers have intimated their unconditional support for such a move, virtually challenging the bereaved relatives who harbour these doubts to “bring it on!” Well, crunch time is approaching, albeit at the speed of continental drift. Will the government get its wish to have this all cleared up in open court, or will someone, somewhere, wield the dreaded “certainty and finality” ban-hammer over the process? 

It’s now five months since the application was submitted to the SCCRC. At some point the deliberations have to end and a report will emerge. How that is received will be a huge test of our criminal justice system, and incidentally of our new justice secretary.

Keeping timer documents secret

[What follows is excerpted from a report published on this date in 2008 in the Daily Record:]

Secret documents at the centre of a costly courtroom row are unlikely to help Libyan agent Abdelbaset al-Megrahi overturn his conviction for the Lockerbie bombings, it was claimed on Wednesday.

Al-Megrahi, 56, is serving a minimum of 27 years of a life sentence for bringing down a United States-bound Pan Am flight in December 1988 with the loss of 270 lives – regarded as Scotland’s worst mass murder.

His claims of innocence have been referred to appeal judges by the Scottish Criminal Cases Review Commission which investigates possible miscarriages of justice.

The SCCRC say that before the trial started al-Megrahi’s defence team should have been shown papers which an unknown foreign government handed over to UK authorities – believed to be about the bomb’s electronic timer.

But defence lawyers cannot get their hands on the documents because the Westminster Government say that revealing their contents will harm foreign relations and hamper the war on terror.

The Court of Criminal Appeal in Edinburgh is now locked in a three day debate about how to conduct a hearing into whether or not the documents can be kept secret under a “public interest immunity certificate”.

As well as the three appeal judges there are nine advocates in the Edinburgh courtroom – five of them QCs.

Advocate General Lord Davidson of Clova QC – who represents Westminster of legal issues in Scotland – has suggested a procedure never before seen in Scotland.

Judges would be allowed to read the secret papers then decide – behind closed doors – whether they should be handed over.

But al-Megrahi’s lawyers would be kept out and replaced by a security-vetted advocate to try to ensure fair play.

Today it was the turn of advocate depute Ronald Clancy QC to give the view of prosecutors.

He told the judges in Edinburgh that Lord Advocate Elish Angiolini QC, responsible for criminal prosecutions in Scotland, would hand over the documents if Foreign Secretary David Miliband had not objected.

“They are not likely to be important to any undermining of the Crown case or cast doubt on it”, he said.

Mr Clancy also suggested that a possible way round the difficulty might be for defence lawyers to see an edited version of the controversial documents.

Margaret Scott QC, senior counsel for al-Megrahi, insisted that without sight of the document she could not properly prepare for the Libyan’s appeal – which is still months away, at least.

“Al-Megrahi’s position here is that he wants disclosure of these documents in order to exercise his right of appeal,” she said.

The papers were “material” because the SCCRC had said so, she added.

Ms Scott also criticised the proposals for a special security-vetted lawyer to encroach on her job.

“My main concern is any proposed procedure which determines the substance of the appeal taking part in the absence of al-Megrahi or his defence counsel”, she said.

[RB: Will we have to go through all this again if the current application to the SCCRC results in a reference of the case back to the Appeal Court, but with Richard Keen QC (whose appointment as Advocate General for Scotland was announced yesterday) seeking to keep the documents out of the hands of the lawyers arguing the appeal on behalf of the late Abdelbaset Megrahi?]

Appeal Court's written opinion following Megrahi procedural hearing

Following the first procedural hearing at the end of August in the appeal by the Megrahi family, I commented in this blog as follows:

This is a very good outcome for the appellant. The court has not restricted the appeal to the (disappointingly narrow) grounds accepted by the Scottish Criminal Cases Review Commission. It has also not rejected out of hand the possible relevance of the documents in respect of which first David Miliband and now Dominic Raab have asserted public interest immunity on behalf of the UK Government. Unsurprisingly, however, it rejected proposed grounds of appeal based on the absence of a "robust system of disclosure", a "systemic failure of disclosure"; and “bad faith on the part of the Crown”.

The appeal court's written opinion has now been released. It can be read here. A report in the Daily Record can be read here; and the report in Scottish Legal News can be found here.

Arab Ministerial Council demands release of documents in the Libyan citizen case

[This is the headline over an item posted on the Libyan Mathaba news agency website on this date in 2008. It reads in part:]

The Council of Arab Foreign Ministers has demanded that all documents requested by the defence team in the trial of the Libyan political hostage Abd al Basset al Megrahi to be released (...)

The failure to release the documents will lead to the miscarriage of justice and an impediment to his vindication, the Council said in a meeting in Damascus today.

The Council entrusted the Arab League Secretary General Amr Mussa with the follow up of this decision and to report back to the next Arab summit.

It considered the Libyan citizen Abd al Basset al Megrahi a hostage by all international norms and laws.

The Council endorsed a decision to tackle the damage resulting from the Lockerbie case.

It reconfirmed the legitimate right of Libya to reparations for the human and material losses incurred by the unjust sanctions that had been imposed on it.

[The shocking story of the Public Interest Immunity certificate signed by the Foreign Secretary David Miliband can be followed here.]

Scottish judges rule Lockerbie documents will remain secret

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

Scotland’s most senior judges have upheld a secrecy order signed by the foreign secretary, Dominic Raab, to withhold intelligence documents believed to implicate a Palestinian terror group in the Lockerbie bombing.

Lawyers acting for the family of Abdelbaset al-Megrahi, the Libyan convicted of the bombing, believe the documents are central to a fresh appeal against his conviction which starts on Tuesday and had urged the court to release them.

The appeal has been lodged by Megrahi’s son, Ali Abdulbaset al-Megrahi, in what is believed to be the first posthumous miscarriage of justice case in Scottish legal history. Megrahi died of cancer in Tripoli in 2012 after being released from prison on compassionate grounds.

The documents are thought to have been sent by King Hussein of Jordan to the UK government after Pan Am Flight 103 was blown up over the town of Lockerbie on December 1988, killing all 259 passengers and crew, and 11 townspeople.

The documents are believed to allege that a Jordanian intelligence agent within the Popular Front for the Liberation of Palestine-General Command (PFLP-GC), called Marwan Khreesat, made the bomb. Critics of Megrahi’s 2001 conviction believe the PFLP-GC carried out the attack on behalf of the Tehran regime in revenge for the destruction of an Iranian airliner by the US warship the USS Vincennesa in July 1988, but this was covered up in order to implicate Libya.

In August, Raab signed a public interest immunity certificate to keep the documents secret. In 2008 the then foreign secretary, David Miliband, also refused to release the papers ahead of Megrahi’s second appeal, later abandoned in the belief he would be released early from prison.

In a ruling issued late on Friday, Scotland’s most senior judge, Lord Carloway, the lord justice general, said the court had upheld Raab’s order signed in August, after studying the papers in a secret hearing earlier this month, even though the foreign secretary agreed the documents are relevant to the appeal.

“His clear view is [it] 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,” Carloway said, referring to Raab’s submission. “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.”

To the disappointment of the Megrahis’ lawyers, Carloway sided with the UK government by arguing much of the material in the secret documents was known to Megrahi’s defence team at his trial in the Netherlands in 2000-01, as were claims about Khreesat’s role, even though the Jordanian cables were withheld from his lawyers.

The Megrahi family lawyers insist the documents could have opened up significant new lines of inquiry and helped prove Megrahi’s innocence if they had been released before his trial. Megrahi tried to incriminate the PFLP-GC in the bombing.

The Scottish government’s lawyers, who are on the UK government side in opposing the appeal, told Carloway they believed the documents should be disclosed.

The new appeal hearing was ordered after the Scottish Criminal Cases Review Commission decided Megrahi’s conviction was arguably a miscarriage of justice, because of significant discrepancies in the evidence of the Crown’s key witness, a Maltese shopkeeper called Tony Gauci, who alleged Megrahi had bought clothes put in the suitcase bomb.

The SCCRC also said the Crown had failed to disclose Gauci and his brother were offered reward payments totalling $3m for testifying. Given that evidence, no reasonable jury would have convicted Megrahi, and his rights to a fair trial under article 6 of the European Convention on Human Rights had been breached. [RB: Non-disclosure of the payment offer to the Gaucis is not the principal basis of the contention that no reasonable jury would have convicted.]

The commission found the Jordanian documents were hearsay and had not come from a primary source. That contradicts a previous ruling by the SCCRC. In 2007, with different commissioners involved in the case, it had decided the Jordanian documents did raise questions about the safety of Megrahi’s conviction when it recommended an appeal.

With that hearing under way in August 2009, Megrahi abandoned his case after it emerged he had cancer. “He did so at least partly because he thought that by doing so his prospects of compassionate release would be increased,” the court said.

Megrahi defence team loses bid to access secret document

[This is the headline over an article by Lucy Adams that appeared in The Herald on this date in 2008. It reads as follows:]

The defence team for the Libyan jailed for the Lockerbie bombing yesterday suffered a set-back in its attempts to get access to a top-secret document.

The document, which originated in an unknown foreign country, is thought to contain vital information about the timer which detonated the bomb that killed 270 people in 1988.

At the previous hearing, the UK Government said the document could not be disclosed for reasons of national security, leading the defence team to accuse it of "interference" in the appeal.

Margaret Scott QC, senior counsel for Abdelbaset Ali Mohmed al Megrahi, the Libyan currently serving 27 years in Greenock prison for the bombing, objected to the Advocate General for Scotland - the law officer who represents the UK Government in Scottish affairs - playing a part in the debate.

She accused the government of meddling - an allegation hotly disputed by Lord Davidson, the Advocate General, and by Elish Angiolini QC, the Lord Advocate and head of prosecutions in Scotland.

However, yesterday the appeal judges ruled against her. Their decision opens the way for several days of future debate about whether letting lawyers see the document would have any security implications.

The Libyan's defence team say it needs to see the document in order for Megrahi to have a fair appeal.

Earlier this year, the Court of Criminal Appeal in Edinburgh was told that Ms Angiolini would be prepared to disclose the document but that has also been disputed.

The document itself was uncovered during the three-year investigation of the Scottish Criminal Cases Review Commission which resulted in the case being referred back to the courts for a new appeal last summer.

The commission concluded the failure during the original trial to disclose this document, which is thought to contain information about the electronic timer used to detonate the bomb, could constitute a miscarriage of justice.

Although the Crown allowed the commission to see the material they have refused to disclose it to the defence.

Foreign Secretary David Miliband claims the document should remain confidential.

Now Lord Davidson will be allowed to put the case for "public interest immunity", on his behalf, at a future hearing - for which no date has yet been set. The hearing of Megrahi's actual appeal is still months away.

Megrahi, who was jailed in 2001, was not in court yesterday - but the appeal judges have been told he would like to attend future appeal hearings.