Lockerbie court rejects bid for further CIA Giaka cables

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

Judges at the Lockerbie trial have ruled that a Libyan double agent working for the CIA should enter the witness box next week.

Abdul Majid Giaka, who is living under protection in the US where he defected 10 years ago, is expected to be flown to The Netherlands to begin giving evidence on Tuesday.

When the trial resumed on Thursday after a three-week adjournment, defence lawyers sought a further delay in his appearance.

But that has been overruled and Giaka is expected to give evidence over several days to the Scottish Court at Camp Zeist.

Giaka's appearance has been held up repeatedly by defence objections and legal debate.

At the heart of the objections has been the issue of the availability of notes of interviews held between Giaka and his CIA handlers in America.

These papers - or cables - have been trickling out with varying degrees of censorship.

Defence lawyers William Taylor QC confirmed on Thursday they had received 36 additional cables.

But their contents suggested there was even more key CIA evidence they wanted to see, particularly relating to possible Palestinian involvement in the bomb plot.

Scotland's Lord Advocate Colin Boyd QC, who heads the prosecution team, said the latest CIA evidence provided more details on Giaka himself.

There were also details about his CIA "rewards" and information about two Palestinian terror groups which, he acknowledged, had originally been strong suspects in the Lockerbie inquiry.

Presiding judge Lord Sutherland said the request for more information could only be accepted if there was a "valid basis" for calling on the CIA to produce them, if the documents had "proper purpose" and if they would be of "material assistance" to the defence.

The court also had to consider whether failure to produce such documents would jeopardise the fairness of the trial of the two men accused of the 1988 Lockerbie bombing.

After consulting his two fellow judges he told the court: "On the information placed before us we are not satisfied that the criteria have been met."

At the time of the Lockerbie bombing in December 1988 Giaka was already on the CIA payroll, working for Libyan Arab Airlines at Malta airport.

His court appearance is likely to be behind screens.

Giaka is believed to have been pressing for a disguise as well. When he gave a statement to prosecution lawyers last year he met them on a moving bus while wearing a Shirley Bassey wig.

His concern not to be seen reflects constant fears that Libyan agents have been out to murder him ever since his defection to America.

[RB: The history of this disgraceful episode can be followed here.]

Majid Giaka offers his services to CIA

It was on this date in 1988 that Abdul Majid Giaka, a low level employee of Libyan intelligence (JSO), walked into the United States embassy in Valletta, Malta, and asked to speak to a CIA officer. From that date onwards he was a CIA asset and had many meetings with his American controllers. Although Pan Am 103 was destroyed on 21 December 1988, it was more than two years after that, when Giaka’s monthly US stipend was about to be cancelled, that he came up with information about Lockerbie. Without his “evidence”, it is in the highest degree unlikely that indictments would or could have been brought in either the USA or Scotland against Abdelbaset Megrahi and Lamin Fhimah.

The story of Giaka’s baleful rôle in the Lockerbie case is detailed in chapter 7, The Fantasist, in John Ashton’s Megrahi: You are my Jury. Other useful accounts can be found here on Caustic Logic’s website The Lockerbie Divide, and on this blog here.

The Times of Malta on the CIA Giaka cables

[Today's edition of the Maltese newspaper The Times contains a report on the CIA cables relating to the Pan Am 103 bombing that were referred to in a post on this blog on 5 September 2011. The report reads in part:]

Malta was a “primary launching point” for Libyan intelligence and terrorist teams transiting Europe, according to a recent compilation of declassified CIA cables dating between 1988 and 1991.

But campaigners for justice in the Lockerbie bombing case have slammed such claims, describing the CIA’s main informant as a “money-grubbing fantasist” who led the CIA by the nose.

The informant quoted extensively in the 255-page document (taken predominantly from declassified CIA cables released in 2008 and compiled by an international organisation) is Abdul Majid Giaka, whose testimony, as an informant, was pivotal in convicting Abdelbaset al-Megrahi for the Lockerbie bombing, despite the court having cast doubts on Mr Giaka’s credibility and reliability as a witness. [RB: Giaka's testimony was not "pivotal" in convicting Megrahi. The Lockerbie judges rejected his evidence in its entirety, with the exception of that part relating to the structure of the Libyan security and intelligence services and Megrahi's alleged position in them.]

According to Lockerbie campaigner Robert Forrester, the recently compiled cables are so heavily redacted that any effort to corroborate the veracity of intelligence is impossible.

“Giaka was showered with US tax dollars in return for nothing of substance,” he told The Times.

Mr Forrester – who forms part of a group of Lockerbie victim family members who believe Mr al Megrahi was wrongly convicted – also criticised the CIA for showing no indication of having tried to independently corroborate any of the “so-called intelligence”. [RB: The Justice for Megrahi group, of which Robert Forrester is secretary, is not, of course, "a group of Lockerbie victim family members" but a group of concerned persons, some of whom are Lockerbie family members.]

“It really does look like [the CIA] swallowed it all, hook, line and sinker, until it finally dawned on them that he was worthless,” he said.

“These additional papers detailing the CIA’s relationship with Mr Giaka, add little to what is already known and to the doubts which have always hung over this case... Malta has absolutely no reason to think that these documents taint the island’s good name any more than it has been.”

However, he added that it is up to the Maltese government to take “concrete steps” to lift the cloud of Lockerbie which hangs over the island.

“The evidence is there which proves that there is no evidence to support this conviction.”

Justice system "available to manipulation"

[This is the heading over a news item on the website of Scottish lawyers' magazine The Firm. It reprises the views expressed by Dr Jim Swire in the article published in today's P & J, and continues as follows:]

Solicitor Eddie Mackechnie, who represented acquitted co-accused Lamin Khalifa Fhimah, told The Firm that the US intelligence services assured the Scots prosecution authorities before the trial that they possessed a "star witness" who could identify the two accused and place them at the centre of the events. Crucially, the key material was redacted and not disclosed until the trial proceedings were underway.

The testimony of that witness, Abdul Majid Giaka, was dismissed from consideration by the three judge bench, who noted in the verdict that he was salaried monthly by the CIA.

"We are unable to accept Abdul Majid as a credible and reliable witness on any matter," they said.

UN special observer Hans Koechler also criticised the interference of intelligence services in the trial and appeal proceedings.

Lockerbie prosecution leaves a 'gaping hole'

[This is the headline over a report published in The Guardian on this date in 2000. It reads as follows:]

After 73 days of evidence and more than 230 witnesses, the Lockerbie trial was adjourned yesterday amid warnings of a yawning chasm in the crown's case which augured little chance of conviction of any of the accused.

Since the indictment faced by Abdelbaset Al Megrahi and Al Amin Khalifa Fhimah was read in the high security courthouse at Camp Zeist on May 6, the prosecution's case has travelled across continents and through territory more commonly associated with airport potboilers.

But although prosecution lawyers have done their best to construct an intricate trail between the Libyans accused and the biggest act of mass murder in British history, they have continually been let down.

Key witnesses have crumbled under cross examination; others have refused to make the links the prosecution so desperately needed them to do; some have offered testimony so bizarre that even the prosecution admits it is worthless. And there is the problem of the "gaping hole".

The Libyans face three charges: murder, conspiracy to murder and a breach of the Aviation Security Act. For these charges to succeed, according to Robert Black QC, the Edinburgh law professor who proposed the trial at a neutral venue, the prosecution must prove the bomb which blew up Pan Am flight 103 began its journey in Malta. Prosecution lawyers had barely sat down after completing their case before Professor Black was warning they had not succeeded in the fundamentals of their task.

"Unless I have missed something, and I do not think I have, there is a gaping hole at the centre of the crown's case," he said. "It is an absolutely crucial element in all the three charges that the suitcase containing the bomb started in Malta. The crown has to prove that the bomb was planted at Malta - and it has not. It has merely proved there is a theoretical possibility that it was."

The omission is hardly lost on defence lawyers. Lord Sutherland yesterday granted a request from Richard Keen QC, counsel for Fhimah, for a one week adjournment. On Tuesday Mr Keen will begin his "no case to answer" submission. If he is successful, half of the trial will come crashing down.

Repercussions

The chances of Mr Keen's success depend on the weight of evidence stacked against his client. The credibility of key prosecution witnesses may have been destroyed in cross examination, but such things are beyond the judge's consideration.

Although the route which brought them to Camp Zeist is complex, the charges faced by the Libyans rely on a few simple premises. Megrahi and Fhimah are alleged to have been members of the JSO, the Libyan intelligence service, who worked under cover in the offices of Libyan Arab Airlines at Malta's Luqa airport. On December 21 1988, the prosecution claims, the pair planted a bomb which was contained within a radio cassette recorder in a Samsonite suitcase and loaded it on an Air Malta plane at Frankfurt airport.

The crown says that suitcase was transferred on to Pan Am flight 103. A few hours later the jumbo blew up over Lockerbie, killing all 259 passengers and crew on board and 11 people on the ground. It is a neat scenario, but it is far from certain the judges will agree that the crown has proved it is accurate.

The trial of Megrahi, the co-accused, is destined to continue until his defence has been fully heard. William Taylor QC, counsel for Megrahi, yesterday asked for an adjournment to allow Syria to respond to a court request for the release of a se cret document which claims to offer an alternative explanation of the bombing.

Both Megrahi and Fhimah have lodged a special defence of incrimination, blaming Palestinian terrorist groups, including the Damascus-based Popular Front for the Liberation of Palestine-General Command. If Fhimah's no case to answer plea is successful, his side of the story will never be heard. But, over the next weeks, it is expected that Mr Taylor will advance the scenario first accepted by those investigating the bombing.

In the first years of the investigation there was just one working theory. It was believed that the bomb was a revenge attack mounted by the PFLP-GC for the shooting down of an Iranian airbus in the Gulf by the USS Vincennes in July 1988. This theory was ditched around the time of the Gulf war, when America took on Iraq with the acquiescence of Syria and Iran.

For special defence to succeed, Mr Taylor, and perhaps Mr Keen, need not prove this scenario accurate. They need only place reasonable doubt over the veracity of the scenario advanced by the crown. Much of the crown's case relies on technical evidence which has gone unreported and unobserved as the trial grinds on in Holland. Yet there have been a few key witnesses - and they have not lived up to expectation.

The first of these was Anthony Gauci. This Maltese shop owner was crucial to linking Megrahi to the bomb. When investigators picked through the wreckage of flight 103 they found clothing stained with residue from a Semtex explosion; it was labelled "Malta Trading Company". The clothing was sold at Mr Gauci's shop. But, although Mr Gauci said Megrahi resembled a man whom he remembered buying similar clothing before the bombing, he stopped short of full identification.

Next came Edwin Bollier, a Swiss businessman whose Zurich-based company, Mebo, is alleged to have made the timer used in the bomb. For years before the trial, Mr Bollier waged an internet campaign denying the timer was supplied by his firm. Under questioning from the prosecution, however, he conceded that it could only have come from Mebo.

Protection

When Mr Bollier said he supplied such timers solely to Libya, the prosecution's case appeared to receive a boost. But that may have later been dented by the admission that he also supplied timers to the Stasi, the East German security force, who in turn backed Palestinian terrorist organisations.

As far as star witnesses are concerned, that left only Abdul Majid Giaka - a Libyan who worked alongside the accused at Luqa airport. Giaka was a double agent: working for the CIA at the same time as the JSO. He defected to the US on the witness protection programme and, as he emerged after 10 years, he told the court Fhimah had shown him explosives in his drawer; he claimed he had once handed Megrahi a report on how to place a bomb on a plane leaving Luqa airport. Finally, in his most crucial piece of evidence, he said he had watched Megrahi and Fhimah take a Samsonite suitcase, flown in from Libya, unaccompanied through customs.

But under cross-examination his credibility was tarnished. "While in America, have you been able to dip into gems of American literature, such as their short-story writers like James Thurber?" asked Mr Keen. "Have you encountered someone called Mitty, first name Walter?"

Main players in bomb trial

Abdelbaset Al Megrahi

One of the accused. He is alleged to have worked undercover for the JSO, the Libyan intelligence agency, as head of security at Libyan Arab Airlines at Malta's Luqa airport. The prosecution says he used this position to plant the bomb on an Air Malta plane which fed on to flight 103 at Frankfurt. He has lodged a special defence of incrimination.

Al Amin Khalifa Fhimah

The co-accused. Like Megrahi, Fhimah is alleged to have been working undercover for the JSO when he worked as station manager at Libyan Arab Airlines.

Anthony Gauci

A Maltese shop owner whom the prosecution claims sold the clothing found in the case which housed the bomb.

Edwin Bollier

A Swiss businessman whose company, Mebo, made the timer which the prosecution say was used in the Lockerbie bomb.

Abdul Majid Giaka

The Libyan supergrass. He was a double agent - working for the JSO and the CIA - when he worked with the accused at Luqa airport. Claims to have been shown explosives in Fhimah's desk. Defence portrayed him as a fantasist who made up his testimony to secure a new life in the US.

Crown Office's Lockerbie shame revisited

[One year ago today, two items were published on this blog.  The first was headed Former Lord Advocate ... seriously misled the Megrahi Court claims book author and dealt with the disgraceful episode of the redacted CIA cables relating to "star" Crown witness Abdul Majid Giaka.  The item merits perusal in full, but here is a taster:]

[Lord Advocate Colin] Boyd explained that according to Crown QC Alan Turnbull: “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 case.”

Mr Boyd also explained that he had no control over the documents that they resided in the USA under the control of US authorities.

Boyd ended by stating categorically: “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 [Giaka] on these matters.”

Mr Ashton’s book though now reveals that the reason the Lord Advocate had no control over the documents was that Norman McFadyen had signed a non-disclosure agreement before viewing them.

According to Mr Ashton, the Crown had “secretly, ceded to the CIA the right to determine what information should, or should not, be disclosed in a Scottish Court”.

Also, further revelations contained in Mr Ashton’s book show that far from being of no significance to the case, the redacted sections of the cables were in fact highly significant.

[The second item is headed A clear signal... It is a blistering piece from the pen of Steven Raeburn, editor of Scottish lawyers’ magazine The Firm.  Again, it merits perusal in full.  Here is just one paragraph:]

The Crown Office persistently and desperately clings to the manufactured fantasy of Megrahi’s guilt, a fabrication specifically designed to implicate Libya as a matter of geopolitical convenience. It has steadfastly opposed every opportunity to undertake its duty and apply justice in this case. The Crown has been conducting an elaborate charade almost from the outset, with the explicit, curiously coordinated support of the Scottish Government, and tacit consent of the Westminster Government, whose own malfeasance from Thatcher downwards is transparent and warrants investigation.

Report fails to address crucial evidence

[This is the headline over an article by John Ashton in today’s edition of The Herald.  It reads in part:]

The 821-page SCCRC report is impressively detailed and argued, but important areas of evidence remain untouched and it's clear the commission missed important facts that strengthen Megrahi's claims of innocence.

The most notable is the failure to consider evidence from the three airports that, according to the Crown, the Lockerbie bomb passed through: Luqa in Malta, Frankfurt and Heathrow.

The Crown case relied on documents from Frankfurt, which seemed to show that an unaccompanied bag was transferred from an inbound Air Malta flight to Pan Am 103's Heathrow feeder flight.

Evidence from Malta suggests this was unlikely, and there was also evidence from Heathrow, not available to the trial court, suggesting that the bomb was loaded onto PA103 before the feeder flight arrived.

The FBI played a big role in the investigation, yet the only FBI files to which the commission had access were the ones held by the Crown Office. During its four-year review the commission only interviewed one US investigator, former CIA agent Robert Baer, and failed to conduct any investigations in Germany, home of the Palestinian cell who were the original suspects in the bombing.

The report's 24 volumes of appendices contain some important information, which the commission failed to comment upon. For example, a police report concerning possible reward payments to star witness Tony Gauci also states that he gave 23 statements and was visited by the police more than 50 times. Only 19 statements were disclosed to Megrahi's lawyers and the details of most meetings have never been revealed.

The biggest omission concerns the key forensic evidence that convicted Megrahi: a piece of circuit board alleged to be from one of 20 timing devices supplied to Libya. Last month the biography Megrahi: You Are My Jury, revealed that a metallic coating ruled it out as part of one of those timers. A supplementary report noted the discrepancy but said it was not "significant". 


[Another article by John Ashton in the same newspaper headlined "The other prime suspect and doubts over conviction" can be read here (and here); and a report by Lucy Adams headlined "Lockerbie trial QC criticized" can be read here (and here). The QC in question is Colin Boyd (Lord Boyd of Duncansby) who was Lord Advocate at the time of the Zeist trial. The criticism is as follows:]

In its 821-page report, the Scottish Criminal Cases Review Commission (SCCRC) criticises Lord Boyd for his handling of CIA cables, referring to Abdul Majid Giaka, an alleged double agent who was a Crown witness. Giaka identified Megrahi as a member of Libyan intelligence, but his subsequent evidence was rejected following revelations in the US intelligence agency's much-redacted cables that he had demanded and received reward money.

Lord Boyd originally told the trial there was no need for disclosure.

However, the SCCRC said it was "difficult to understand" his assurances on August 22, 2000, that there was "nothing" within the documents relating to Lockerbie or the bombing which could "in any way impinge" on Giaka's credibility. It added: "The matter is all the more serious given that part of the reason for viewing the cables on 1 June, 2000, was precisely in order to assess whether information behind the redacted sections reflected upon Majid's credibility."

The Crown subsequently shared some of the redacted cables after demands from the defence. 

[I have previously written about this utterly disgraceful episode in an article published in The Scotsman on 23 July 2007. Today's edition of that newspaper contains a report headlined Lockerbie: Fresh plea to release Lockerbie dossier as 6 key doubts emerge.]

“I wonder who killed our relatives?”

[The following are excerpts from an article published on this date in 2000 on the website of the Washington Report on Middle East Affairs by Ambassador Andrew I Killgore, the magazine’s editor and publisher:]

“I wonder who killed our relatives?”—A middle-aged American man on a BBC-TV program about the Lockerbie trial.

Pan American Flight 103 was destroyed by an on-board explosive device over Lockerbie, Scotland on Dec 21, 1988. All 259 persons on board, most of them Americans, and 11 people on the ground were killed.

Two Libyans, Abdel Basset Ali Megrahi and Lamen Khalifa Fhimah, are on trial for the crime. The trial is being conducted, by Scottish judges under Scottish law, at Camp Zeist, a former US military base near Amsterdam, the Netherlands. According to Scottish law, the three judges may reach a finding of guilty, not guilty or not proven.

The prosecution’s operating theory is that the bombing of Pan Am Flight 103 was in retaliation for the US bombing of Tripoli in 1986, which itself was in retaliation for Libyan involvement in the bombing of a Berlin disco frequented by American servicemen. As often seems to be the case, however, the US and Libya were not the only countries involved in the ever-ratcheting rounds of retaliation. (...)

The trial of the two accused Libyans has taken some bizarre turns. The most astonishing development is that the prosecution’s highly touted key witness, the pseudonymous Libyan intelligence service defector Abdul Majid Giaka, proved on the witness stand to lack any credibility. Moreover, CIA cables reluctantly made available to the Court depicted Giaka as an unsavory character whom CIA personnel themselves had distrusted.

A BBC television broadcast showed a group of people leaving the courtroom on the day Giaka performed so badly on the witness stand. Many in the group were relatives of Pan Am 103’s victims attending the trial at the expense of the US Department of Justice’s Office of Victim Services. The quote at the beginning of this article, by a member of the group who appeared to be an American, reflected a puzzled doubt of the Libya-did-it scenario.

Even more puzzling, if that is possible, is that CIA agent Harold M Hendershot, brought to the stand to buttress Giaka’s shaky testimony, himself turned out to be vague and not very credible. In view of the fact that Hendershot had been deeply involved in the case from the time of the crash in December 1988, one is left with a growing sense of confusion, rather than answers, about Lockerbie.

The Lockerbie trial recessed at the end of October for several days while the Court considered how to handle a mass of new material on Lockerbie presented by an “unnamed country.” Whether the material in this weird new turn in the trial is helpful to the prosecution or defense is unknown, although University of Edinburgh criminal law professor Robert Black speculates that it must help the defense.

The twists and turns of Lockerbie raise intriguing questions, some of them troubling. If Libya did not bomb Pan Am 103, who did? Why would the United States present a case that didn’t hold up? Was the case ever expected to be brought to trial? Or was it basically a device for keeping Qaddafi in the doghouse with unproven charges?

Perhaps these twists and turns should not be unexpected, however—for the most significant surprise occurred on the day of the crash itself. According to its normal flight plan, Pan Am 103 “should” have blown up over the sea, where evidence of criminality never would have been found. Instead, unusually strong gale force winds that day led the pilot to fly north to get “above” the tempests—and thus to be over Scotland when the bomb exploded. Are the real criminals who blew up Pan Am 103 trembling in fear lest a fluke of nature that left evidence on the ground eventually will point to them?

First public mention of Lockerbie "star witness" Giaka

[What follows is an article that appeared fifteen years ago today on The Pan Am 103 Crash Website run by Safia Aoude:]

Senior Scottish prosecutors in the Lockerbie bombing case, led by the prosecutor Norman McFadyen, have recently visited the United States to interview a witness who claims to have seen the two Libyan defendants prepare the bomb, according to the British newspaper The Independent. The identity of the mystery witness a Libyan is known to The Independent and has been protected since the man went into hiding in the US in 1992 or earlier. His credibility will be crucial to the full trial, and The Independent did not print his name.

However, this website can reveal that the mystery witness is former Libyan citizen Abdulmajeed Jaeeka. [RB: He is now usually referred to as Abdul Majid Giaka.] He is number one on the witness list of the prosecution, and his address is the US Justice Department in Washington. The witness insisted on dressing as a woman while being questioned recently by Scottish defense attorneys! [RB: It is instructive that this supposedly crucial prosecution witness was precognosced by the defence before he was ever interviewed by the Crown. This nicely illustrates the extent to which the decision to prosecute and the preparation of the prosecution were in the hands of the US Justice Department rather that the Scottish Crown Office.]

Mr Jaeeka has been in a US witness protection programme in undisclosed locations in America since at least 1992. He claims to know the two Libyan defendants, who worked at the Libyan Arab Airlines (LAA) office in Malta, from which the prosecution alleges the bombing was masterminded. Mr Fhimah was working as station manager for LAA in Malta; Mr Megrahi was chief of the security service's airline security division. When the aircraft blew up Jaeeka is said to have been terrified and to have defected. According to The Independent, Mr Jaeeka is believed to have walked into the US Embassy in Rome as a defector.

According to other sources, Mr Jaeeka was simply at that time already showing mental break-up. In 1988 Mr Jaeeka was allegedly undergoing treatment for mental distability following alcoholic abuse. According to the source, Mr Jaeeka did not enter the Libyan embassy in Rome [RB: Surely "US embassy" is meant] as a defector, but he did leave it as such, following a physical attack on the Libyan ambassador in his office. [RB: I do not follow this. In any event it conflicts with the version of Giaka's defection given at the trial.]

Mr McFadyen took a pre-trial statement from the witness, which will be used in the case against the two Libyan defendants. The witness has been in almost total seclusion for at least eight years, fuelling speculation that he may be in a delicate mental state. The Crown Office in Edinburgh, which represents the prosecution, has declined to comment on its contacts with the witness. The defence team will also be allowed to meet the witness.

The indictment against the alleged bombers who were first named three years after the explosion depends heavily on this man's testimony. Under Scottish law, there should be at least one other witness, to corroborate his testimony. About one third of the people on the 1,000-strong witness list come from the US, and many, like the key witness, have their addresses as the US Justice Department in Washington. Most are FBI Agents but there are thought to be others on the witness protection programme. Like the Libyan witness, they are expected to give their testimony to the trial in the Netherlands from behind a screen. It is yet unclear, whether the Scottish judges will allow anonymous witnesses and/or secret evidence in the trial.

The defence will aim to undermine his credibility by showing that he was either misled or is not telling the truth. But the main focus of their case will be that someone else a Middle Eastern group was directly responsible for the destruction of the aircraft.

[RB: The Zeist judges ultimately assessed Giaka as a wholly incredible witness. Read more about him and the Crown’s dealings concerning him here.]

Article in The Scotsman on 23 July 2007

The fairy story of the Crown's independence

ROBERT BLACK

At the end of June, the Scottish Criminal Cases Review Commission (SCCRC) referred Abdelbaset Ali Mohmed 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, the Crown and the High Court) extends to more than 800 pages, accompanied by 13 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 there were six grounds on which it had concluded a miscarriage of justice might have occurred.

Strangely, only four of these grounds are enumerated in the summary. They are:
• That there was no reasonable basis for the trial court's conclusion that the date of purchase of the clothes which surrounded the bomb was 7 December 1988, the only date on which Megrahi was proved to have been on Malta and so could have purchased them. The finding that he was the purchaser was "important to the verdict against him".
• That evidence not heard at the trial about the date on which Christmas lights were switched on in Malta further undermined the trial court's conclusion that the date of purchase was as late as 7 December.
• That evidence was not made available to the defence that four days before the shopkeeper made a tentative identification of Megrahi at an ID parade he had seen a magazine article containing a photograph of Megrahi, linking him to the bombing.
• That other evidence which undermined the shopkeeper's identification of Megrahi and the finding as to the date of purchase was not made available to the defence.

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 cornerstone of the Crown's case against him. If, as suggested, that finding had no reasonable basis in the evidence, then there is no legal justification for his conviction.

I have always contended that no reasonable tribunal could have convicted Megrahi on the evidence led. Here is 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 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 correct, the weather conditions in Sliema on those two days were explored. Shopkeeper Tony Gauci's evidence was that when the purchaser left his shop it was raining so heavily 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 to have 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 appeal court to fail to overturn the 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).

I contend that at least part of the answer lies in the history of the Scottish legal and judicial system. For centuries courts 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 Executive's) chief legal adviser, he (now she) would at all times, in his capacity as head of the prosecution system, act independently, 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 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 - and indeed it casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction.

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

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

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

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

The Lord Advocate replied: "Well, I'm just checking with the counsel who made that... there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Majid on these matters."

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

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 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. So much for the fairness of the trial being the Crown's primary and predominant motivation!

It is surely time for all involved in the Scottish criminal justice system to put away childish things. We are all of us, judges included, surely too old to believe any longer in fairytales. Fairytales 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, as has already been called for by, among others, Dr Jim Swire, Tam Dalyell and Professor Hans Koechler, the UN observer at the Lockerbie trial.

• Robert Black, QC, FRSE, is Professor Emeritus of Scots Law at the University of Edinburgh.

MacAskill is saying that at Camp Zeist, diplomacy and politics trumped justice

[What follows is the complete text of James Robertson’s review of Kenny MacAskill’s The Lockerbie Bombing. The shorter version published in The Herald can be read here.]

In May 2000, two Libyan citizens, Abdelbaset al-Megrahi and Lamin Khalifa Fhimah, went on trial before a specially convened Scottish court at Camp Zeist in the Netherlands. They were accused of acting in concert to place a bomb contained in a suitcase on a plane flying from Malta to Frankfurt; the suitcase was then transferred as unaccompanied luggage to another flight going to London Heathrow, and there transferred again to Pan Am flight 103, the target, which was blown up, en route to New York, over the town of Lockerbie on the evening of 21 December 1988. All 259 passengers and crew, and 11 people on the ground, were killed.

In January 2001, the court acquitted Fhimah, but found Megrahi guilty and sentenced him to life imprisonment. He remains the only person convicted of involvement in the bombing. To many people, the verdict did not make sense then, and subsequent revelations have only reinforced a widespread belief that Megrahi was the victim of a shocking miscarriage of justice.

This book is former Cabinet Secretary for Justice Kenny MacAskill’s account of the atrocity, of the subsequent investigation and trial, and of his own part in what followed. In 2009, it fell to him, in his ministerial role, to decide whether to grant Megrahi, who was by then suffering from terminal prostate cancer, compassionate release from prison. That decision – to allow Megrahi to go home to Libya to die – forms the centrepiece of Mr MacAskill’s narrative, but it is not the most revealing part.

The book suffers from Mr MacAskill’s inflated and syntactically-challenged writing style: ‘The investigation, meanwhile, marched meticulously on. The dynamics of both tension and camaraderie between various agencies continued, though in the main all worked well with each other.’ The narrative is scattered with words like ‘literally’ (bodies were ‘literally destroyed, smashed to smithereens’), and ‘doubtless’ (a prop for assertions unsupported by any evidence). Mr MacAskill deprives many of his sentences of verbs, and fattens others with clichés. Readers who might reasonably expect a full set of references to back up his account of this long, controversial and unfinished story, will be disappointed: there is no index, no bibliography and, of the 93 footnotes, 67 come from just four sources, one of these being the Scottish Government’s own website. A cover quotation from Clive Stafford Smith, the human rights lawyer, credits Mr MacAskill with a ‘forensic attention to detail’. I beg to differ.

None of this would matter if Mr MacAskill were writing about UFOs or his favourite movies. His subject, however, is the biggest criminal case in Scottish legal history – an event he chooses to describe on page 1 as ‘one of the greatest whodunnits of all time’. It matters greatly that a trained lawyer should use imprecise and careless language to discuss complicated questions of evidence. It matters, for example, that, in referring to the timer which the court at Camp Zeist accepted was used to detonate the bomb, Mr MacAskill calls it ‘the MST-13 model, known as an ice-cube timer’. In fact, MST-13 timers and ‘ice-cube’ timers were completely different, and that difference – as the court’s judgement made clear – was crucial to the prosecution’s case. If the bomb was triggered by an ‘ice-cube’ timer – as many critics of the investigation believe it was – then had it been loaded in Malta it would have exploded between there and Frankfurt, rather than 38 minutes after takeoff from Heathrow. Such a basic mistake does not inspire confidence that Mr MacAskill has a full grasp of his subject.

His publishers, Biteback Publishing – owned by Lord ‘Call Me Dave’ Ashcroft and former blogger and Conservative candidate Iain Dale – do not seem unduly bothered by these shortcomings. Could it be that they don’t mind if the book damages the reputations of the author and the SNP administrations in which he served?

The most astonishing passages occur when Mr MacAskill offers his opinion as to who planted the bomb. Syntax purists, look away now: ‘Megrahi had been to Malta the month before, which was probably preparatory for the scheme and involved discussions on the logistics of clothes, the suitcase and the bomb equipment. He may even have brought the timers in with him.’ At this point Mr MacAskill ratchets up his use of the conditional tense – always a handy tool when indulging in pure speculation: ‘He [Megrahi] would meet with others in the [Libyan] embassy…he would not be the bomb maker. That would have been prepared in the Libyan People’s Bureau…’ Again, there is no attempt to substantiate these wild surmises.

Mr MacAskill proceeds to demolish the findings of the Camp Zeist court. Of the items bought in Tony Gauci’s shop in Malta which were packed in the bomb suitcase, he writes: ‘The clothes were acquired in Malta, though not by Megrahi.’ Correctly describing as ‘rather implausible’ the evidence produced by the prosecution that Megrahi was the purchaser, MacAskill continues, ‘But, if Megrahi didn’t buy the clothes, he was certainly involved.’ Really? How?

Megrahi’s role, it seems, was to fly from Tripoli into Luqa Airport in Malta on 20 December 1988 ‘with the suitcase that was to transport the bomb’. ‘The suitcase,’ we are informed, ‘was a Samsonite model, sold heavily in the Middle East market’ – as if this proves anything. These statements not only disregard the fact that Megrahi and his co-accused Fhimah (the station manager for Libyan Arab Airlines at Luqa) arrived in Malta on that date with no check-in luggage, they also rely solely on the testimony of a CIA-paid informer Abdul Majid Giaka, whom the judges dismissed as an utterly unreliable witness, concluding, ‘We cannot accept the evidence of Abdul Majid that he saw the two accused arriving with a suitcase. It follows that there is no evidence that either of them had any luggage, let alone a brown Samsonite suitcase.’

Mr MacAskill wades deeper into the mire. Further undermining the Camp Zeist judgement, he writes that, on the morning of 21 December, Megrahi took the suitcase (now apparently loaded with the bomb) to the airport, ‘but it was Fhimah who would get it airside and beyond security.…Placing a bag behind and into the system was a relatively simple task given the accreditation and access Fhimah had.’ At the trial the Crown argued that just such a sequence of events had occurred. The judges, however, concluded that ‘there is no evidence in our opinion which can be used to justify this proposition and therefore at best it must be in the realm of speculation. Furthermore, there is the formidable objection that there is no evidence at all to suggest that the second accused was even at Luqa airport on 21 December.’ Fhimah was consequently acquitted.

The judges also observed that ‘the absence of any explanation of the method by which the primary suitcase might have been placed on board KM180 [at Luqa] is a major difficulty for the Crown case.’ In just a few bold sentences, Mr MacAskill has completely overcome this difficulty.

Mr MacAskill finds it ‘hard to imagine how there could have been any other verdict in the circumstances.’ This is strange, as neither prosecution, defence teams, the families of the victims nor most independent observers expected one of the accused to walk free and the other to be found guilty. Mr MacAskill continues: ‘In many ways, as with Megrahi and Fhimah, Scots law and its judges were simply actors in the theatre that had been created to circumvent and solve both a diplomatic impasse and political problem. Scots law convened the trial, and yet found itself on trial.’

Read those sentences carefully: a former Justice Secretary is effectively saying that, at Camp Zeist, diplomacy and politics trumped justice. For how many years have critics of the proceedings been saying this, while Mr MacAskill, the Scottish Government and the Crown Office have maintained that justice prevailed?

Mr MacAskill’s solving of the problem of how the bomb was placed on flight KM180 relieves him of the need to address with any seriousness the accumulated mass of other evidence pointing in other directions. He pays no attention to the post-trial discrediting of the infamous timer circuit-board fragment linking Libya to the bomb, nor to Morag Kerr’s  convincing explanation, in her 2013 book Adequately Explained by Stupidity?, of the much more likely scenario that the bomb was loaded directly onto Pan Am flight 103 at Heathrow. He skims lightly over the Scottish Criminal Cases Review Commission’s 2007 report which indicated at least six grounds on which Megrahi’s conviction might be unsafe. Of John Ashton’s 2012 book Megrahi: You Are My Jury, the most comprehensive analysis of the entire Lockerbie saga, he writes, ‘There was little new that came out in the book or media other than a rehash of what had gone before and the same lines from all parties involved.’ Mr MacAskill, it seems, is not impressed by arguments that really are based on a forensic attention to detail.

To summarise: Mr MacAskill asserts that Fhimah, acquitted by the court, planted the bomb, and that Megrahi, found guilty by the court, did not buy the clothes from Tony Gauci’s shop. He also acknowledges that without Gauci’s identification of Megrahi as the purchaser, the case against him would have collapsed. This, then, is the new position of the Cabinet Secretary for Justice who, while in office, repeatedly articulated the Scottish Government’s view that it ‘did not doubt the safety of Megrahi’s conviction’. So, too, did the then First Minister Alex Salmond, who nevertheless endorses Mr MacAskill’s book as ‘the most credible explanation yet published of who was really responsible for the downing of Pan Am flight 103’. They cannot have it both ways: either they think the judges got it right, or they think they got it wrong.

Mr MacAskill admits that, had Megrahi’s second appeal reached court, his conviction might well have been overturned. He then makes this shameful comment: ‘But, this account of how the bombing was carried out and by whom is based on information gathered meticulously by police and prosecutors from the US, Scotland and elsewhere. It’s also founded on intelligence and sources not available for a court or that have only come to light thereafter.’

Well, that’s all right then. Megrahi didn’t buy the clothes, the grounds of his conviction were shaky at best, but we know from other sources that he was involved and anyway he’s dead now, so that’s good enough for the Scottish justice system.

If Mr MacAskill does have information pertinent to this still ‘live’ case, he is duty-bound to share it with the police. Police Scotland are currently concluding a major, three-year investigation, ‘Operation Sandwood’, into nine allegations of possible criminality on the part of police officers and Crown representatives during the original investigation and trial. These allegations were made by the organisation Justice for Megrahi (of which I am a member) and six of them were first drawn directly to Mr MacAskill’s attention, in strict confidence, on 13 September 2012. They were passed from his office to the Crown Office, which immediately, before the police had even begun to investigate them, made a public statement declaring the allegations to be ‘without exception, defamatory and entirely unfounded’. Some of the allegations relate to the very aspects of the case that Mr MacAskill now says the court got wrong.

For more than a quarter of a century the Lockerbie case has been a dark stain on the Scottish justice system. Kenny MacAskill rubs and rubs at that stain. Whatever his intent, the effect is not to make it vanish but to make it look far worse.