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.]

Call to clear up Lockerbie doubt

[This is the headline over a report published on the BBC News website on this date in 2005. It reads in part:]

Lord Advocate Colin Boyd has asked one of his predecessors to clarify an apparent attack he made on a key witness in the Lockerbie trial.

Remarks by Lord Fraser of Carmyllie, who issued the indictment against two Libyans charged with the 1988 bombing, were reported in a Sunday newspaper.

Lord Fraser said he had attempted to correct the "erroneous interpretation" of his views on Tony Gauci's evidence.

He said he had written to Mr Boyd expressing his dismay over it. (...)

Abdelbaset Ali Mohmed al-Megrahi was convicted of smuggling a bomb aboard the New York-bound flight on 21 December, 1988.

The former Libyan intelligence officer was found guilty after a trial by a specially convened Scottish court at Camp Zeist in the Netherlands.

His co-accused, Al Amin Khalifa Fhimah, was acquitted.

On Friday, Mr Boyd said that remarks attributed to Lord Fraser expressed doubts about Mr Gauci, the Maltese shopkeeper who sold the clothing to Megrahi which was used to pack the bomb suitcase.

Mr Boyd said: "It was Lord Fraser who, as Lord Advocate, initiated the Lockerbie prosecution.

"At no stage, then or since, has he conveyed any reservation about any aspect of the prosecution to those who worked on the case, or to anyone in the prosecution service."

The lord advocate said that the position of the Crown both before and after Lord Fraser left office in 1992 had always been that Tony Gauci was a reliable and credible witness.

He said that the three High Court judges who saw Mr Gauci giving evidence said that they found him entirely credible.

Lord Fraser said: "I have already told the Crown Agent in two telephone calls that I have no aspersions to cast on Tony Gauci's evidence."

"Indeed such was the thoroughness of the investigation and the way in which it developed that I probably would place greater emphasis and credibility on Mr Gauci's evidence than any of my successors as lord advocate."

He added: "As the present lord advocate wholly correctly asserts, however, any view of mine is essentially irrelevant. What matters is the judgment of the court.

"Three of Scotland's High Court judges heard him give evidence properly subject to cross-examination and they were specific in their conclusion that he was entirely credible."

Who is accused of perverting the course of justice?

In the (redacted) version of Justice for Megrahi’s letter alleging criminal misconduct in the Lockerbie investigation and prosecution that was released to the press on 23 October 2012, allegation no 1 reads as follows:

“1.  On 22 August 2000 the Lord Advocate, Colin Boyd QC, communicated to the judges of the Scottish Court in the Netherlands information about the contents of CIA cables relating to the Crown witness Abdul Majid Giaka that was known to members of the prosecution team [A B and C D] who had scrutinised the cables, to be false. The Lord Advocate did so after consulting these members of the prosecution team. It is submitted that this constituted an attempt to pervert the course of justice.”

A number of journalists have interpreted this paragraph as embodying an allegation that Colin Boyd attempted to pervert the course of justice. The latest of these is Kenneth Roy in an article in today's edition the Scottish Review headlined A High Court judge and an allegation of criminality.  This raises concerns about the standard of English comprehension amongst journalists, because the paragraph makes no such allegation -- indeed was very carefully drafted in order to avoid it. What the paragraph alleges is that two members of the prosecution team, A B and C D,  supplied to Colin Boyd information about the CIA cables which A B and C D knew to be false (because they had scrutinised the cables) and which they knew he was going to, and did, communicate to the court.  That is the perversion of the course of justice that is alleged. 

I am disappointed when journalists attempt to explain or excuse their flagrant misinterpretation of a text by reference to its -- non-existent -- ambiguity. The paragraph quite simply does not say that Colin Boyd perverted the course of justice. To represent that it does is an error on the part of the reader, not the writer.

Cover-up, conspiracy and the Lockerbie bomb connection

[This is the headline over an article by Marcello Mega that was published in Scotland on Sunday on 19 February 2006:]

If there is a day when the seemingly inconsequential case involving DC Shirley McKie morphed into the crisis which today is threatening the reputation of Scotland's judicial and political system, it is Thursday, August 3, 2000.

It was already more than three years since McKie had visited a house in Kilmarnock where a woman called Marion Ross had been brutally murdered. Since then McKie had been accused of entering that house unauthorised, and leaving her fingerprint on the crime scene. She had been charged with perjury, after claiming in court she had never set foot in there. She had been humiliated at the hands of her former colleagues.

Now, on that August day, a group set up by the Association of Chief Police Officers Scotland (ACPOS) to examine the McKie case, was faced with a stunning report. It had already been established that the fingerprint experts at the Scottish Criminal Records Office (SCRO) had got it wrong and that the print was not McKie's. Now, the document in front of the group - an interim update from James Mackay, the man they had asked to investigate the case - claimed the SCRO officers had acted criminally to cover up their mistakes. The consequences were immense: if Scotland's forensic service was both guilty of errors and of attempting to conceal those errors, what confidence could anyone have in the entire justice system?

Last week, Scotland on Sunday revealed the contents of Mackay's final report, which had been kept secret for six years, and which was never acted upon by Scotland's chief prosecutor, Lord Advocate Colin Boyd. This week, we can reveal that it was not just police and prosecutors who knew its contents; the devastating findings of the interim version were passed on to ministers as well.

Mackay, a much respected former Deputy Chief Constable of Tayside police, had been commissioned to investigate the McKie case after a separate report by HM Inspectors of Constabulary had found that - despite the SCRO's claims - McKie's prints had never been at the crime scene. Mackay now probed deeper. As this newspaper revealed last week, his final report found that a mistake had been made, yet had not then been owned up to. "The fact that it was not so dealt with," he reported, "led to 'cover up' and criminality." (...)

On Friday, [Lord Advocate Colin Boyd QC] declared that he had seen the full Mackay report and decided that there was still insufficient evidence to prosecute anyone from the SCRO. This decision, taken in September 2001, astonished Mackay. He is understood to have expressed his "surprise" and "disappointment" to the Crown Office and to have relayed his concerns to the then deputy crown agent, Bill Gilchrist. Indeed, so curious is the Lord Advocate's decision not to prosecute, that many are reaching their own conclusions as to why he didn't press ahead with a prosecution.

One is the theory that such a prosecution would undermine the case against David Asbury, the man jailed for the murder of Marion Ross. Such a fear was misguided: Asbury's conviction was quashed anyway in August 2002 on the back of the McKie revelations.

A second theory brings in the shadow of the Lockerbie bombing. Mackay's explosive report into the McKie case that August came three months after Boyd began the prosecution of Libyan suspects Abdelbaset Al Megrahi and Al Amin Khalifa Fhimah. The eyes of the world were focused on Scottish justice. What would it have said of that system if - just as the Crown was trying to convict the bombers - it emerged that fingerprint officials had been involved in "criminality and cover-up"?

Boyd strenuously denies that Lockerbie has any relevance to his judgments regarding the McKie case. When Iain McKie first raised the issue in 2000, Crown Office officials declared that Lockerbie "had not affected in any way the response from this or indeed any other department of the Scottish Executive to the issues raised by you."

But there is clear proof that senior justice chiefs had a stake in both cases; SCRO director Harry Bell, for example - whose agency was coming under such scrutiny - was a central figure in the Lockerbie investigation, having been given the key role in the crucial Maltese wing of the investigation, and given evidence in court.

Today's revelation that two American fingerprint experts who savaged the SCRO over the McKie case were asked by the FBI to "back off" suggests that plenty of people were aware of the danger that the case could undermine the Lockerbie trial.

Former MP Tam Dalyell - who has long campaigned on the Lockerbie case -

said: "I have always felt that there was something deeply wrong with both the McKie case and the Lockerbie judgment. It is deeply dismaying for those of us who were believers in Scottish justice. The Crown Office regard the Lockerbie case as their flagship case and they will go to any lengths to defend their position."

The pressure for a full public inquiry is now growing day by day.

Former Lord Advocate Boyd on Libya and Lockerbie

[There was a debate on the situation in Libya in the House of Lords on Friday, 1 April. The contribution of former Lord Advocate Lord Boyd of Duncansby (Colin Boyd) as reported in Hansard (starting on column 1496) was as follows:]

Lord Boyd of Duncansby: My Lords, as Lord Advocate I prosecuted the Lockerbie trial. I mention that not to claim any great insight into the present situation in Libya. Nor do I claim that the focus of attention should be on that one horrific incident, although I can at least bear witness to the horror of one aspect of Gaddafi's terrorism. The priority has to be the protecting of the civilian population, while ensuring a transition to a democratic state founded on the rule of law and respecting human rights. Thereafter, there are any number of criminal offences that should be addressed.

I mention Lockerbie because it has been central to our relations with Libya over the past two decades and more, and because the trial has some lessons for us in the pursuit of justice and the rule of law. Before I go any further, I say that I am speaking strictly for myself as it is four and a half years since I have been in the Crown Office and had any contact with any of the evidence. Megrahi was convicted of the murder of 270 people: 259 on Pan Am 103 and 11 on the ground in Lockerbie. Scottish terms of conviction and indictment also narrate certain factors which go along with the conviction. In this case, Megrahi was convicted while acting along with others, who were unnamed. Moussa Koussa's defection to the United Kingdom and his connection to Lockerbie have been much commented on in the past 24 hours. From my knowledge, which I emphasise is elderly, he is a "person of interest". I am pleased that the Prime Minister has acceded to the Crown Office's request that prosecutors and police should have access to him. However, he is no more than that. No warrant has been issued for his arrest, and there are others who would also be of interest. That should be borne in mind, and I say no more on the matter.

The other aspect of the conviction was that Megrahi was acting in furtherance of the aims and objectives of the JSO, the Libyan intelligence services, so the court was satisfied of the culpability of the Libyan state for what happened, acting through the agency of its intelligence service. The conviction was important in bringing to justice one of the people who was responsible for that atrocity. The trial was innovative both in being in the Netherlands and in the adaptations that were made for that purpose. I pay particular tribute to the late, lamented Robin Cook, the Foreign Secretary who was particularly important to that, and to the Foreign Office, which set it up.

Thereafter, the road becomes somewhat trickier. I choose my words carefully: there were times, more than once, when I had the strong impression that Megrahi's conviction was seen as an inconvenience and an impediment to developing relations with Libya.

I acknowledge that the rapprochement was significant and important because it led to the renunciation by Gaddafi of weapons of mass destruction. Other claims that were made for it, such as the provision of intelligence on al-Qaeda, I take with, frankly, a little more scepticism, particularly as Gaddafi is now claiming that virtually everyone who is involved in the rebellion is motivated by al-Qaeda. However, the negotiation of the prisoner transfer agreement, in the expectation-and, I suspect, the hope-that it would lead to the return of Megrahi to Libya, was an error of judgment. It was in the face of an agreement with the United States that, if convicted, he would remain in Scotland and serve his sentence there, and, importantly, of commitments that were given to American relatives-often through me, acting, as I believed at the time, on the advice of the Government of the day.

The announcement of the enhanced judicial co-operation, which included a commitment to the prisoner transfer agreement, at the same time-and I think in the same press release-as the contracts for BP, did nothing to dispel the impression that we were prepared to compromise on our principles of justice. This, along with the eventual return of Megrahi, undermined the confidence of the United States and of American relatives in our commitment to justice on this issue. One has only to have regard to the letter from Robert Mueller to the Justice Minister in Scotland, Kenny MacAskill, to understand the depth of anger that was provoked. I remind the House that if, and I stress "if", there were to be any prospect of any new trial arising out of the Lockerbie incident, or possibly on other matters that need US co-operation, that co-operation has been put in difficulty as a result of what was done by the British and Scottish Governments. Relations between prosecutors remain good but between Governments they do not.

Lord Trefgarne: My Lords, might I ask the noble and learned Lord a question? He appears to have overlooked the view of the Scottish Criminal Cases Review Commission on this matter; it found the conviction unsafe.

Lord Boyd of Duncansby: It did not. It said that there may have been a miscarriage of justice and referred it back to the Appeal Court. Had the appeal gone forward, it would have been the Appeal Court that ruled on that. For myself, I think it was unfortunate that that appeal was withdrawn, since the matter was then not dealt with. However, there now seems to be at least an acceptance that Libya was responsible for the Lockerbie bombing.

At the end of the trial, Louis Freeh, the then director of the FBI, telephoned me. One of the messages that he wanted to give me was that it demonstrated to the world, particularly to the United States, that we can bring justice home to terrorists with patience and international co-operation, and that the US could learn that it did not need a military response. That lesson has been lost or obscured in the aftermath of 9/11, but it is even more relevant now.

We need to bring through a strong commitment to international justice. One of the most powerful of the speeches that I have listened to today was that of the noble Lord, Lord Alderdice, who outlined the reason for that. Through our present mission, we are promoting that international justice. I accept with limitations that we are doing the right thing and that it is legal, but we must go further.

What we have seen and witnessed in Libya is truly shocking: enforced disappearances, beatings, torture, horrific rapes and extrajudicial killings, as well as attacks on civilian populations. Holding people to account for these crimes is of vital importance, and part of that is ensuring that people are brought before the International Criminal Court or other courts as appropriate. It sends out a powerful message, not just to dictators and despots but also to those who chafe under such tyrannical regimes. If we are to build a world where human rights are universally respected, our commitment to those fundamental values must not be waived in the face of expediency.

One might have expected more in the way of hard evidence

[What follows is the text of an article by Ian Ferguson that was published on this date in 2000 by Middle East Intelligence Bulletin:]

Set in the tranquility of the Dutch countryside, the trial of the two Libyans accused of bombing Pan Am flight 103 and killing 270 persons on December 21, 1988 has not yet reached it's 50th day in session, yet it is already clear that the prosecution's case is showing signs of major cracks. The investigation, which led to the charges being brought against Al-Amin Khalifa Fhimah and Abdel Basset Ali al-Megrahi, was heralded as the largest criminal investigation in history. With the combined resources of the Scottish Police, the FBI and the CIA being brought to bear on this case, one might have expected a case which contained more in the way of hard evidence. Thus far, however, the Crown has presented a case composed entirely of circumstantial evidence and recent revelations at the trial show that some of it may be fatally flawed.

In the last few weeks we have seen an issue develop at the trial concerning the evidence of Libyan informer Abdul Majid Giaka. Prosecuting authorities on both sides of the Atlantic have for many years now indicated that this man would be their star witness. Skeptics were told to stay quiet and await his testimony at the trial. Giaka, who has been in the U.S. Witness Protection Program since July 1991, arrived at Camp Zeist on August 14 expecting to testify at the trial. The nearest he got to the courtroom was driving past it in his motorcade of US deputy marshals who provide his protection and he flew back to the United States on August 31. During those two weeks, instead of hearing the testimony of Giaka, the court has been preoccupied with legal submissions and arguments over a number of classified CIA cables sent by Giaka's handlers in Malta back to CIA headquarters in Langley, Virginia.

The legal row erupted on August 22 when the court reconvened after the summer recess. William Taylor, QC for Megrahi, informed the judges that there were some 25 CIA cables relating to Giaka and that he had been informed the day before that the prosecution had seen much fuller versions of these cables than had been provided to the defense, thus placing the defense at distinct disadvantage. The Crown admitted that they had been shown a version of these cables on June 1 and that what they had seen was "blacked out" or redacted from the version given to the defense.

The Lord Advocate of Scotland, Colin Boyd, told the court that what Advocate Depute Alan Turnbull QC had seen was irrelevant to the defense's case and was also information which could be a threat to the national security of the United States. The judges were not impressed with this argument and ordered Boyd to use his best endeavors to approach the CIA and have these edited portions made available to the defense. Meanwhile, the court agreed with the defense that they could not hear the testimony of Giaka until the issue of the CIA cables was resolved.

Alongside the CIA cables, the defense also challenged another item--a diary belonging to Fhimah that the Crown wished to present to the court. The court was told that the diary was obtained without a search warrant and as such they challenged its admissibility.

By Friday of that week, Boyd had produced for the defense and the court the largely unedited versions of the CIA cables. The contents were regarded by the defense as being "highly relevant" to their case. During lengthy legal debates we were treated to some of the "irrelevant" information that the Crown had decided should be denied to the defense. The idea that the Crown saw themselves as the arbiters of this information was at best an appalling lack of judgment and at worst an attempt to suppress information damaging to their case.

The new information showed that the CIA agents in Malta had questioned the value of Giaka as an informer. In a cable dated September 1989 (over a year after the CIA recruited him as an informer), they contemplated cutting off his $1000 per month salary as he had not provided them with the quality of information they had hoped he would. They doubted that he was an agent for the JSO (Libyan External Intelligence) and had decided to inform him that he would be put on "trial" status until January 1990. This is hardly a ringing testimonial for any informer and its importance to the defense was enormous.

If the CIA agents closely involved with Giaka held this opinion in September 1989, what happened in the intervening period to July 1991 to alter this opinion and make his testimony so crucial to this trial? If he possessed any information linking either of the two accused to the Pan Am 103 bombing, why was it not offered in the months leading up to the attack in December 1988, at which point Giaka had already been on the CIA's payroll for four months? Could it be that he was not able to supply them with this information until a decision was made to shift the focus of the investigation from Syria and Iran to Libya?

Evidence already given at the trial by a senior Scottish Police detective, Harry Bell, shows that a photograph of Megrahi was first shown to Maltese shopkeeper Tony Gauci in February 1991, after Bell was contacted by Special Agent Philip Reid of the FBI. Once again we are forced to ask why it took so long for Giaka to implicate Megrahi or Fhimah. Did it take from August 1988 until February 1991 for Giaka to implicate either of the accused? We certainly can deduce that it must have been at least after September 1989, when coincidentally his source of CIA money was threatened with withdrawal.

The use of information gathered by paid informers is already a contentious issue before courts in many jurisdictions and it has certainly become a major issue at this trial. The issues relate to motivation and credibility. Giaka would have been made aware that the US Department of Justice was offering a huge reward (around $4 million) for information leading to the conviction of those responsible for the bombing of Pan Am 103 and this may prove to be yet another hurdle for the prosecution to overcome.

The defense, sensing that the CIA may hold further information on Giaka, as well as on other groups that were originally the prime suspects in the investigation, successfully petitioned the court to once again have the Lord Advocate use his "best endeavors" with the CIA and request that it hand over all information it had on Giaka and the Damascus-based Popular Front for the Liberation of Palestine-General Command (PFLP-GC), specifically Mohammed Abo Talb, a member of the PFLP-GC.

On September 21, the court will hear whether or not the Lord Advocate has been successful in his requests to the CIA. If he is unsuccessful in his "best endeavors" route, the judges have left the door open to revisit another submission from Richard Keen QC for Fhimah, which they rejected in favor of asking Boyd to explore his present course of action. The legal remedy sought by Keen was for formal "letters of request" to be submitted to the U.S. government so that a federal judge can review all the pertinent documents held by the CIA and sanction the release of such documents (excluding those which pose a real threat to American national security). The judges originally rejected this request because Boyd informed the court that this procedure might take anywhere from six months to two years, during which time the court would have to be adjourned. Such a lengthy adjournment would likely be greeted by an outcry from many of the families of those murdered on Pan Am flight 103, but it may be the only solution for the judges to ensure that the accused receive a fair trial.

In any case, the Crown still has other problems with regard to the testimony of another contentious witness: Mohammed Abo Talb, who is currently serving a life sentence in Sweden for terrorist attacks in Copenhagen. Talb was originally the prime suspect in the Pan Am 103 bombing and has been named in the special defense cited by lawyers for both accused Libyans.

Talb has been linked to a PFLP-GC cell that was operating in Malta during 1988 and police found a diary in his Swedish apartment in which the date of December 21, 1988 (the day of the Pan Am bombing) is circled. Needless to say, this circumstantial evidence incriminates Talb at least as much as the note in Fhimah's diary saying "get Air Malta taggs" (sic) incriminates the accused. When Maltese shopkeeper Tony Gauci was asked to look at the photograph of Megrahi, he commented that this photograph "most resembled the man who bought clothes" in his shop, but went on to say "other than the picture of the man shown to me by my brother." The other picture Gauci was referring to was a photograph of Talb shown to him by his brother Paul.

The clothes in question are alleged to have been bought by Megrahi on the December 7, 1988, remnants of which the Crown alleges were found among the wreckage of the Pan Am plane. The defense will claim that the clothes were bought earlier by Talb and will present evidence of this to challenge the prosecution's claims.

So we have as good an identification of Talb as we have of Megrahi. Moreover, Talb is a convicted bomber with connections to a group that was making bombs hidden in Toshiba tape recorders that were nearly identical to the one alleged to have brought down Pan Am flight 103. We have also learned that Talb has agreed to testify at the Camp Zeist trial in return for a reduction in his sentence. A senior source in the Swedish police, who spoke on condition of anonymity, confirmed that an arrangement has been reached between the UK and Swedish authorities which will allow Talb to apply successfully for a "time limit" to be put on his sentence in return for his cooperation with Scottish prosecutors.

Talb, who has consistently refused to be interviewed by the defense, was thought extremely unlikely to attend as a witness and, as the Scottish court has no power of subpoena, there has been speculation for months as to why he would even contemplate attending. It is now clear that the prospect of a release date was the price for his cooperation, but it will no doubt be another issue raised prior to or during his testimony. Whether the case against the Libyans will stand up to scrutiny in court cannot be predicted, but clearly the events of the last few weeks have been the biggest setback to the Crown since the trial started on May 3.

Amid all of the publicity generated by the CIA cables about Giaka, the Crown has tried to reassure the families that all is not lost, that its case does not rely on the testimony of a single witness. For years they have been hinting at DNA, fingerprint and other hard evidence which we were told would be produced at the trial. With the Crown's case admittedly on their last evidentiary chapter, we are still waiting.

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.

Cover-up, conspiracy and the Lockerbie bomb connection

[This is the headline over a long article that appeared in Scotland on Sunday on 19 February 2006. The following are excerpts. The reason for drawing attention to this article on 3 August 2017 appears in the first paragraph.]

If there is a day when the seemingly inconsequential case involving DC Shirley McKie morphed into the crisis which today is threatening the reputation of Scotland's judicial and political system, it is Thursday, August 3, 2000.

It was already more than three years since McKie had visited a house in Kilmarnock where a woman called Marion Ross had been brutally murdered. Since then McKie had been accused of entering that house unauthorised, and leaving her fingerprint on the crime scene. She had been charged with perjury, after claiming in court she had never set foot in there. She had been humiliated at the hands of her former colleagues.

Now, on that August day, a group set up by the Association of Chief Police Officers Scotland (ACPOS) to examine the McKie case, was faced with a stunning report. It had already been established that the fingerprint experts at the Scottish Criminal Records Office (SCRO) had got it wrong and that the print was not McKie's. Now, the document in front of the group - an interim update from James Mackay, the man they had asked to investigate the case - claimed the SCRO officers had acted criminally to cover up their mistakes. The consequences were immense: if Scotland's forensic service was both guilty of errors and of attempting to conceal those errors, what confidence could anyone have in the entire justice system?

Last week, Scotland on Sunday revealed the contents of Mackay's final report, which had been kept secret for six years, and which was never acted upon by Scotland's chief prosecutor, Lord Advocate Colin Boyd. This week, we can reveal that it was not just police and prosecutors who knew its contents; the devastating findings of the interim version were passed on to ministers as well.

Mackay, a much respected former Deputy Chief Constable of Tayside police, had been commissioned to investigate the McKie case after a separate report by HM Inspectors of Constabulary had found that - despite the SCRO's claims - McKie's prints had never been at the crime scene. Mackay now probed deeper. As this newspaper revealed last week, his final report found that a mistake had been made, yet had not then been owned up to. "The fact that it was not so dealt with," he reported, "led to 'cover up' and criminality." [RB: See Wikipedia article Fingerprint Inquiry.] (...)

A second theory brings in the shadow of the Lockerbie bombing. Mackay's explosive report into the McKie case that August came three months after Boyd began the prosecution of Libyan suspects Abdelbaset Al Megrahi and Al Amin Khalifa Fhimah. The eyes of the world were focused on Scottish justice. What would it have said of that system if - just as the Crown was trying to convict the bombers - it emerged that fingerprint officials had been involved in "criminality and cover-up"?

Boyd strenuously denies that Lockerbie has any relevance to his judgments regarding the McKie case. When Iain McKie first raised the issue in 2000, Crown Office officials declared that Lockerbie "had not affected in any way the response from this or indeed any other department of the Scottish Executive to the issues raised by you."

But there is clear proof that senior justice chiefs had a stake in both cases; SCRO director Harry Bell, for example - whose agency was coming under such scrutiny - was a central figure in the Lockerbie investigation, having been given the key role in the crucial Maltese wing of the investigation, and given evidence in court.

Today's revelation that two American fingerprint experts who savaged the SCRO over the McKie case were asked by the FBI to "back off" suggests that plenty of people were aware of the danger that the case could undermine the Lockerbie trial.

Former MP Tam Dalyell - who has long campaigned on the Lockerbie case - said: "I have always felt that there was something deeply wrong with both the McKie case and the Lockerbie judgment. It is deeply dismaying for those of us who were believers in Scottish justice. The Crown Office regard the Lockerbie case as their flagship case and they will go to any lengths to defend their position."

The pressure for a full public inquiry is now growing day by day.

Sensitive information from a foreign government

[What follows is excerpted from a report published on this date in 2000 on the BBC News website:]

The Lockerbie trial is to be delayed again after "sensitive" information was given to the prosecution by a government.

In an unexpected development, Scotland's Lord Advocate Colin Boyd QC told the judges on Monday it was impossible to proceed without further enquiries.

He gave few details to the court but confirmed that the information was related to the defence case and did not come from the United States.

Although some witnesses will be heard on Tuesday, the judges, with defence agreement, agreed then to adjourn the trial until Tuesday, 17 October.

On Monday the court at Camp Zeist in Holland was due to hear more evidence relating to the special defences of incrimination put forward by the two accused men.

They have denied all charges against them, blaming others for the atrocity including Mohamed Abo Talb, a former commander in the Palestinian Popular Struggle Front.

Talb, who was jailed for life in 1989 for bombing an airline's office in Copenhagen, was expected to give evidence as a prosecution witness on Monday.

The prosecution declined to comment further on the delay and a Crown Office spokesman said: "We can give no further information other than that given to the court by the lord advocate."

Mr Boyd told the court he had received the new information on Thursday and enquiries were carried out on Friday.

He said: "The matters raised by this information are of some complexity and considerable sensitivity. They relate not to the Crown case but to the defence case.

"Enquiries are continuing but it is likely, though not certain, that I will conclude that the information ought to be disclosed to the defence.

"However there are a number of difficult issues which require to be resolved before any disclosure is possible.

"The sensitivity of the enquiries is such that I am unable to give any further explanation at this stage."

Mr Boyd said it would be "inappropriate" to lead further Crown evidence relating to the special defences as the new information could have a bearing on the cross examination of witnesses.

William Taylor QC, defence counsel for Al Megrahi, told the judges he was "as much in the dark" as them about the reasons for the adjournment and therefore in no position to object to it.

However he added: "I am conscious that my client has now been in custody for some considerable time and any delay further extends that period."

Richard Keen QC, defending Fhimah, said: "It's obviously unfortunate the accused should have been in custody for one and a half years while 57 days of a trial has taken place.

"But the lord advocate was good enough to speak to myself and Mr Taylor before and I fully accept he has obligations incumbent on him in the public interest."

Presiding judge Lord Sutherland said that while a disruption to the proceedings was "unfortunate" the judges accepted the adjournment motion.

He said: "We will adjourn until next Tuesday for enquiries to be made. All we can do is express the hope that there will be sufficient time to resolve the difficulties."

[RB: I suspect that the document referred to above was not in fact provided to the defence at the Zeist trial and is the same document that was only disclosed six years later to the Scottish Criminal Cases Review Commission, and in respect of which the Foreign Secretary, David Miliband, signed a Public Interest Immunity certificate to prevent its being revealed to Megrahi’s legal team for the subsequent appeal. The contents of the document were made public in a report in The Herald in June 2012. Kenny MacAskill made reference to it in his recent Lockerbie book: see Lockerbie: The bid to suppress evidence on this blog on 27 May 2016.]

Colin Boyd's bloomer

It is sad (but not entirely surprising) to see the former Lord Advocate, Lord Boyd of Duncansby QC, in the House of Lords repeating the assertion that "... no fewer than eight judges of the High Court of Justiciary have similarly concluded on the evidence that he [Abdelbaset Megrahi] was guilty of the crimes".

The trial court at Zeist consisted of three (voting) judges. The appeal court at Zeist consisted of five. As has frequently been been pointed out on this blog, the five judges in Megrahi's first appeal stated in paragraph 369 of their Opinion:

“When opening the case for the appellant before this court Mr Taylor [senior counsel for Megrahi] stated that the appeal was not about sufficiency of evidence: he accepted that there was a sufficiency of evidence. He also stated that he was not seeking to found on section 106(3)(b) of the 1995 Act [verdict unreasonable on the evidence]. His position was that the trial court had misdirected itself in various respects. Accordingly in this appeal we have not required to consider whether the evidence before the trial court, apart from the evidence which it rejected, was sufficient as a matter of law to entitle it to convict the appellant on the basis set out in its judgment. We have not had to consider whether the verdict of guilty was one which no reasonable trial court, properly directing itself, could have returned in the light of that evidence.”

The factual position, as I have written elsewhere, is this:

"As far as the outcome of the appeal is concerned, some commentators have confidently opined that, in dismissing Megrahi’s appeal, the Appeal Court endorsed the findings of the trial court. This is not so. The Appeal Court repeatedly stresses that it is not its function to approve or disapprove of the trial court’s findings-in-fact, given that it was not contended on behalf of the appellant that there was insufficient evidence to warrant them or that no reasonable court could have made them. These findings-in-fact accordingly continue, as before the appeal, to have the authority only of the court which, and the three judges who, made them."

Perhaps Lord Boyd would wish to apologise to the House for his inaccuracy?

Compensation could be sought for Megrahi's imprisonment

[What follows is excerpted from a report headlined Lockerbie Convict's Family Demands Acquittal Following New Evidence in Case that was published today on the website of the Saudi-owned Arabic newspaper Asharq Al-Awsat:]

The family of Libyan intelligence officer Abdelbaset al-Megrahi demanded compensation for the period he spent in prison after new claims emerged that Iran may have been behind the 1988 downing of the US airplane in Lockerbie. [RB: (a) These are not new claims, but have been common currency for very many years; (b) the only evidence at the Zeist trial that Megrahi was an intelligence officer came from the CIA asset Majid Giaka whose testimony, except on this one point, was dismissed by the judges as utterly incredible.]

The Daily Mail published excerpts of a book by US author Douglas Boyd where he charged that Iran was behind the bombing of Pan Am Flight 103. (...)

[Megrahi] was released from jail in 2009 on compassionate grounds after he was diagnosed with prostate cancer. He died in 2012.

Lawyer Ghada Abdelbaset al-Megrahi demanded on behalf of her family compensation for each hour her father spent in British prisons.

Ahmad Hamza, of Libya's National Commission for Human Rights (NCHR), said Boyd's book may have leaked facts and information that acquit Libya’s former regime and condemn Iran. [RB: The articles that have so far appeared have produced no new facts or information. Whether the book itself does so will be seen only once it is published later this month.]

He told Asharq Al-Awsat that the Iranian regime adopts policies and practices that target the safety and stability of the West, United States and Arab countries. 

He said that the Libyan authorities can seek compensation from the international judiciary for the damage caused to the country over the Lockerbie case.

The official authorities in Libya had yet to comment on Boyd’s allegations, but many political and judicial circles have been demanding that the truth be revealed in the case.

Lockerbie trial personnel

What follows is excerpted from an item originally posted on this blog on this date in 2008:

Where are they now?

[I]t has been reported that Megrahi's junior counsel at the Zeist trial, John Beckett, has been appointed a sheriff (a judge in Scotland's lower court system). Beckett became a QC in 2005 after the trial, and served briefly as Solicitor General for Scotland (deputy to the Lord Advocate, the chief Scottish Government law officer and head of the prosecution system) in 2006 to 2007. See http://www.scotland.gov.uk/News/Releases/2008/04/10100308

As far as the other lawyers involved in the trial are concerned, most remain in practice but two of the prosecutors, Alastair Campbell QC and Alan Turnbull QC, have become judges of the Scottish supreme courts (the Court of Session and the High Court of Justiciary); Megrahi's solicitor, Alistair Duff, has become a sheriff; and Richard Keen QC, the senior counsel for the acquitted co-accused, Lamin Fhimah, has been elected Dean of the Faculty of Advocates (leader of the Scottish Bar). The then Lord Advocate, Colin Boyd QC (later Lord Boyd of Duncansby) has taken the highly unusual step of resigning from the Faculty of Advocates and becoming a solicitor. He is now a partner in a large Edinburgh law firm.

The three judges who presided at the trial, Lords Sutherland, Coulsfield and MacLean, have all now retired from the bench.

[RB: Sheriff Alistair Duff is now Director of the Judicial Institute for Scotland; Richard Keen QC is now Baron Keen of Elie and Advocate General for Scotland; Colin Boyd QC is now a judge of the Court of Session and High Court of Justiciary; Lord Coulsfield died in March 2016.]