The quality of the Crown's judgement

An item from this blog two years ago today:

Secrets of a memo: the Crown and the CIA

[This is the headline over an article by John Ashton published in today’s edition of the Scottish Review and also here on the Megrahi: You are my Jury website.  It reads in part:]

Welcoming the release of the Scottish Criminal Cases Review Commission's report on the conviction of Abdelbaset al-Megrahi on 25 March, Alex Salmond managed to add to the roll call of excuses for not ordering a public inquiry into the case. 

The report, he said, 'in many ways is far more comprehensive than any inquiry could ever hope to be'. In fact, it's not: the SCCRC's job was to establish whether Megrahi may have been wrongly convicted, not to examine why the case went so badly wrong, although it undoubtedly shed some light on that matter. 

If a single document illustrates why we still need an inquiry, it is a confidential memo dated 2 June 2000 by the lead procurator fiscal on the case, Norman McFadyen. Published here for the first time, it reports on a meeting that McFadyen and advocate depute Alan Turnbull QC had had the previous day at the US embassy in The Hague. Large sections of it remain redacted. 

The two prosecutors were there to inspect CIA cables relating to one of the Crown's star witnesses, an ex-colleague of Megrahi's called Majid Giaka, who was a member of the Libyan external intelligence service, the ESO. Giaka, it transpired, was also a CIA informant. Crucially, he claimed that, shortly before the bombing, Megrahi had arrived in Malta with a brown Samsonite suitcase and that his co-accused Lamin Fhimah had helped him carry it through airport customs. If true, this was highly significant, because the Lockerbie bomb was also contained within a brown Samsonite and, according to the Crown, began its journey in Malta. 

Twenty-five heavily redacted cables had been disclosed to the defence. The purpose of the meeting, according to the memo, was to view almost entirely unredacted versions in order to determine 'whether there was any material which required to be disclosed to the defence'. Page two states that, at the CIA's insistence, the two men had to sign a confidentiality agreement, the terms of which McFadyen described as follows: 'If we found material which we wished to use in evidence we would require to raise that issue with the CIA and not make any use of the material without their agreement'. In effect, then, the Crown had secretly ceded to the CIA the right to determine what material might be used in court. 

But it's what followed a few paragraphs later that's key. McFadyen reported that, having inspected the cables: 

We were able to satisfy ourselves that there was nothing omitted which could assist the defence in itself. There were some references to matters which in isolation might be thought to assist the defence – eg details of payments or of efforts by Majid to secure sham surgery – but since evidence was being provided as to the total of payments made and of the request for sham surgery, the particular material did not appear to be disclosable. We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence.

McFadyen was correct in stating that evidence had been disclosed of the total payments to Giaka and a request for sham surgery in order to enable him to resign from the ESO. The payments were detailed in two separate CIA documents (not cables) while his desire for sham surgery request was referred to in one of the disclosed cables.

When, almost three months later, the defence counsel learned of the Hague embassy meeting, they urged the court to ask the Crown to obtain the complete cables from the CIA. In response, the lord advocate, Colin Boyd QC, assured the court that McFadyen's and Turnbull's review had established 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 of incrimination]'. He added: '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'.

The court nevertheless urged the Crown to seek fuller versions of the cables from the CIA. Three days later the Crown handed the defence copies with far fewer redactions. What, then, was contained in the previously concealed sections, which, in McFadyen's view, was 'not relevant to the case or helpful to the defence'? Here's what.

There were repeated references not only to Giaka's desire for sham surgery, but also his repeated and successful pleas to the CIA to pay for it. One of the cables described him as 'something of a hypochondriac', while another noted his claim to be a distant relative of Libya's former leader King Idris. A further one revealed that he wanted the CIA to set him up in a car rental business in Malta and that he had saved $30,000 towards the venture. His handlers believed that much of the money had been acquired from illegal commissions and perhaps through low-level smuggling. 

Crucially, there were references to other meetings with the CIA, for which no cables had disclosed. Eventually the CIA coughed up 36 more, about which McFadyen and Turnbull were seemingly unaware.

The most telling fact concealed by the redactions was that the CIA had grown increasingly dissatisfied with Giaka. One noted that his information about the ESO's structure and administration 'may be somewhat skewed by his prolonged absence and lack of seniority'. Another revealed that he would be told: 'that he will only continue his $1,000 per month salary payment through the remainder of 1989. If [he] is not able to demonstrate sustained and defined access to information of intelligence value by January 1990, [the CIA] will cease all salary and financial support until such access can be proven again'. 

A later section of the same cable noted: 'it is clear that [Giaka] will never be the penetration of the ESO that we had anticipated… [He] has never been a true staff member of the ESO and as he stated at this meeting, he was coopted with working with the ESO and he now wants nothing to do with them or their activities… We will want to ensure that [he] understands what is expected of him and what he can expect from us in return. [CIA] officer will therefore advise [him] at 4 Sept meeting that he is on "trial" status until 1 January 1990'.

Having analysed the unredacted sections, Richard Keen QC, respresenting Megrahi's co-accused, Lamin Fhimah, told the court it was 'abundantly clear' that much of the newly uncovered information was highly relevant to the defence, adding, 'I frankly find it inconceivable that it could have been thought otherwise... Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond'. 

In order words, the Crown had been caught out misleading the court. I do not suggest that Boyd did so deliberately, neither that McFadyen and Turnbull deliberately concealed evidence that they knew would be helpful to the defence. Motive is not the issue: what really matters is the quality of the Crown's judgement. 

Armed with the new information and the 36 additional cables, Keen and Megrahi's counsel, Bill Taylor QC, were able to demolish Giaka's credibility and with it the case against Fhimah, who was acquitted. Had the court taken Boyd at his word and the redactions not been lifted, Giaka might have left the witness stand with his credibility intact and Fhimah may well have been convicted along with Megrahi. 

The big remaining question raised by the McFadyen memo is: was it an isolated failure of judgement or the tip of the iceberg? The SCCRC found numerous items of significant evidence which the Crown had failed to disclose to Megrahi's lawyers. Did the prosecutors also satisfy themselves in each instance 'that there was nothing omitted which could assist the defence'? Only a full public inquiry can adequately answer such questions. It is high time that Salmond's government ordered one.

[My own 2007 account in The Scotsman of the shameful CIA cables episode can be read here. It contains the following paragraph:]

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.

[Had it been defence lawyers who had been caught misleading the court in this fashion, censure and severe professional consequences would inevitably have followed.]

One of the most disgraceful episodes in the Crown Office’s recent history

Two years ago today, I posted on this blog an item headed Former Lord Advocate ... seriously misled the Megrahi Court claims book author.  It bears repeating:

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

Former Lord Advocate, Colin Boyd QC, [now Court of Session judge, Lord Boyd] has been accused of misleading the Court during the trial of Abdelbaset al-Megrahi.

The claim, contained in the book Megrahi – You are my Jury, relates to the QC’s intervention in a matter involving secret CIA cables that contained details of discussions between the US agency and a Libyan ‘supergrass’ named Majid Giaka.

Giaka was a former work colleague of Mr Megrahi who had contacted the CIA claiming to have evidence linking the Libyan and his co-accused Al Amin Khalifa Fhima to the Lockerbie bombing.

Giaka was scheduled to give evidence to the Court in August 2000, but was delayed due to legal wrangling over the telex cables.

Demands by the Libyan’s defence team to see the cables in full led to the intervention by then Lord Advocate Colin Boyd, an episode described by book author John Ashton as “one of the most disgraceful episodes in the Crown Office’s recent history”.

Mr Megrahi’s defence team had requested full disclosure of the secret cables which had been heavily redacted for apparent security reasons.

Lawyers acting on behalf of the two Libyans were informed that the twenty five cables were all that existed and that the redacted areas covered general areas not relevant to the Lockerbie incident.

According to the book, Procurator Fiscal Norman McFadyen [now a sheriff in Ayr] claimed that no-one from the Crown had seen the unedited cables and that the redacted material was irrelevant.

However it subsequently emerged that weeks earlier on 1st June 2000, members of the Crown Office had indeed seen the unedited cables, one of whom was Norman McFadyen and the other Alan Turnbull QC [now a Court of Session judge].

On 22 August on learning of this, Mr Megrahi’s legal team raised the issue with the Court, describing it as “a matter of some considerable importance”.

According to Ashton’s book, Bill Taylor QC argued that without access to the full cables, the defendants would be denied a fair trial, and said: “I emphatically do not accept that what lies behind the blanked out sections is of no interest to a cross examiner … Further, I challenge the right of the Crown to determine for the defence what is or is not of relevance to the defence case.”

Mr Taylor urged the Court to ask the Crown to obtain the complete copies of the cables from the CIA.

In a move, described as unusual by author John Ashton, Lord Advocate Colin Boyd then attended the Court in person and admitted that McFadyen and Turnbull had indeed seen the cables but repeated the Crown’s earlier assertions that the redacted areas had no bearing on the cables themselves or the case.

“While they may have been of significance to the Central Intelligence Agency, they had no significance whatsoever to the case” he said.

Mr 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 defence team eventually forced the Crown to hand over less redacted versions of the cables that contained, contrary to Boyd’s claims, crucial information about Giaka – including doubts about the value of his intelligence information.

Further sections detailed meetings with Giaka not included in the original documents.

Acting for the defence, Richard Keen QC, questioned claims by the Crown that the redacted sections were of no consequence

Pointing to their clear significance, he told the Court: “I frankly find it inconceivable that it could have been thought otherwise … Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond”

According to author John Ashton, Lord Advocate Colin Boyd – now Lord Boyd – had “seriously misled the Court”.

[My own 2007 account in The Scotsman of this shameful and discreditable episode can be read here. What is surprising and deeply regrettable is that the trial judges in their judgement made no mention of this disgraceful Crown conduct.  Had it been a defence advocate who had been detected misleading the court in this way, the matter would certainly not have been overlooked and the consequences for the advocate in question would have been dire.]

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.

Megrahi prosecutor to become Scottish judge

[This is the headline over a report by Lucy Adams in today’s edition of The Herald.  It reads in part:]

Four high-profile QCs, including the former Lord Advocate Colin Boyd and Tommy Sheridan's former defence counsel, Maggie Scott, are about to become high court judges.

Mr Boyd, now Lord Boyd, who led the prosecution of the man convicted of the Lockerbie bombing, was recently criticised by the Scottish Criminal Cases Review Commission for failing to disclose crucial information to Abdelbaset Ali Mohmed al Megrahi's defence. He rejected the claim. [RB: An account of Colin Boyd QC's conduct at one stage of the Lockerbie trial can be read here.]

Ms Scott, who was sacked by Mr Sheridan during his perjury trial in 2010, and led Megrahi's recent appeal case and the defence in many high-profile cases, including Ice Cream War murderer Thomas "TC" Campbell and more recently Nat Fraser, as well as Luke Mitchell, who was convicted of murdering teenager Jodi Jones in January 2005.

The Herald understands Michael Jones and David Burns have also been recommended for the appointments.

A source close to the process said: "Colin Boyd and Maggie Scott are two of the people the Judicial Appointments Board has recommended to the First Minister. It would be highly unusual for ministers to reject such a recommendation. Their appointments are expected to be confirmed shortly."

Lord Boyd resigned as Lord Advocate in 2006. His decision was seen as unusual and triggered speculation he was concerned about the inquiry into the Shirley McKie case, in which a police officer was wrongly accused of leaving a fingerprint at a murder scene and lying about it.

Another potential reason raised was the imminent decision on whether the Lockerbie case would be referred back for a fresh appeal.

Lord Boyd denied he was leaving because of the McKie fingerprint investigation or any other case and said it was simply "time to move on".

Jim Swire, whose daughter died in the Lockerbie bombing, said: "I understand the limited personnel and resources of the Scottish criminal justice system but I am surprised that Colin Boyd would have been put forward as a potential judge.

"In support of his colleagues on the prosecution team, it seemed to me that Boyd made a statement to the court [at Zeist] which was later shown by the revelations in the CIA cables to be untrue. It was over a matter of extreme importance because it concerned the credibility of the prosecution's star witness." (…)

Maggie Scott has described herself as "relatively rebellious". Following her sacking by Sheridan in 2010, the former MSP represented himself and was convicted of perjury in his defamation action against the News of the World in 2006.

Mr Jones, QC, acted for the News of the World in the Sheridan case and the owners of the Rosepark care home in South Lanarkshire after 14 residents died in a fire. Mr Burns recently acted for Craig Roy, who was convicted of murdering Jack Frew. [RB: David Burns QC was second senior counsel for Abdelbaset Megrahi at the Zeist trial and at the first appeal.]

Maggie Scott, QC, said last night that she could not comment. Lord Boyd could not be contacted.

[Two other members of the prosecution team, Alastair Campbell QC and Alan Turnbull QC have already become High Court judges. The principal procurator fiscal at the trial, Norman McFadyen, has become a sheriff.  A commentary by Lucy Adams in the same newspaper headlined Judges are no strangers to controversy focuses particularly on Colin Boyd’s controversial role in the Lockerbie trial.]

Secrets of a memo: the Crown and the CIA

[This is the headline over an article by John Ashton published in today’s edition of the Scottish Review and also here on the Megrahi: You are my Jury website.  It reads in part:]

Welcoming the release of the Scottish Criminal Cases Review Commission's report on the conviction of Abdelbaset al-Megrahi on 25 March, Alex Salmond managed to add to the roll call of excuses for not ordering a public inquiry into the case. 

The report, he said, 'in many ways is far more comprehensive than any inquiry could ever hope to be'. In fact, it's not: the SCCRC's job was to establish whether Megrahi may have been wrongly convicted, not to examine why the case went so badly wrong, although it undoubtedly shed some light on that matter. 

  

If a single document illustrates why we still need an inquiry, it is a confidential memo dated 2 June 2000 by the lead procurator fiscal on the case, Norman McFadyen. Published here for the first time, it reports on a meeting that McFadyen and advocate depute Alan Turnbull QC had had the previous day at the US embassy in The Hague. Large sections of it remain redacted. 

The two prosecutors were there to inspect CIA cables relating to one of the Crown's star witnesses, an ex-colleague of Megrahi's called Majid Giaka, who was a member of the Libyan external intelligence service, the ESO. Giaka, it transpired, was also a CIA informant. Crucially, he claimed that, shortly before the bombing, Megrahi had arrived in Malta with a brown Samsonite suitcase and that his co-accused Lamin Fhimah had helped him carry it through airport customs. If true, this was highly significant, because the Lockerbie bomb was also contained within a brown Samsonite and, according to the Crown, began its journey in Malta. 

Twenty-five heavily redacted cables had been disclosed to the defence. The purpose of the meeting, according to the memo, was to view almost entirely unredacted versions in order to determine 'whether there was any material which required to be disclosed to the defence'. Page two states that, at the CIA's insistence, the two men had to sign a confidentiality agreement, the terms of which McFadyen described as follows: 'If we found material which we wished to use in evidence we would require to raise that issue with the CIA and not make any use of the material without their agreement'. In effect, then, the Crown had secretly ceded to the CIA the right to determine what material might be used in court. 
          

But it's what followed a few paragraphs later that's key. McFadyen reported that, having inspected the cables: 

We were able to satisfy ourselves that there was nothing omitted which could assist the defence in itself. There were some references to matters which in isolation might be thought to assist the defence – eg details of payments or of efforts by Majid to secure sham surgery – but since evidence was being provided as to the total of payments made and of the request for sham surgery, the particular material did not appear to be disclosable. We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence.

McFadyen was correct in stating that evidence had been disclosed of the total payments to Giaka and a request for sham surgery in order to enable him to resign from the ESO. The payments were detailed in two separate CIA documents (not cables) while his desire for sham surgery request was referred to in one of the disclosed cables.

When, almost three months later, the defence counsel learned of the Hague embassy meeting, they urged the court to ask the Crown to obtain the complete cables from the CIA. In response, the lord advocate, Colin Boyd QC, assured the court that McFadyen's and Turnbull's review had established 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 of incrimination]'. He added: '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'.

The court nevertheless urged the Crown to seek fuller versions of the cables from the CIA. Three days later the Crown handed the defence copies with far fewer redactions. What, then, was contained in the previously concealed sections, which, in McFadyen's view, was 'not relevant to the case or helpful to the defence'? Here's what.

There were repeated references not only to Giaka's desire for sham surgery, but also his repeated and successful pleas to the CIA to pay for it. One of the cables described him as 'something of a hypochondriac', while another noted his claim to be a distant relative of Libya's former leader King Idris. A further one revealed that he wanted the CIA to set him up in a car rental business in Malta and that he had saved $30,000 towards the venture. His handlers believed that much of the money had been acquired from illegal commissions and perhaps through low-level smuggling. 

Crucially, there were references to other meetings with the CIA, for which no cables had disclosed. Eventually the CIA coughed up 36 more, about which McFadyen and Turnbull were seemingly unaware.

The most telling fact concealed by the redactions was that the CIA had grown increasingly dissatisfied with Giaka. One noted that his information about the ESO's structure and administration 'may be somewhat skewed by his prolonged absence and lack of seniority'. Another revealed that he would be told: 'that he will only continue his $1,000 per month salary payment through the remainder of 1989. If [he] is not able to demonstrate sustained and defined access to information of intelligence value by January 1990, [the CIA] will cease all salary and financial support until such access can be proven again'. 

A later section of the same cable noted: 'it is clear that [Giaka] will never be the penetration of the ESO that we had anticipated… [He] has never been a true staff member of the ESO and as he stated at this meeting, he was coopted with working with the ESO and he now wants nothing to do with them or their activities… We will want to ensure that [he] understands what is expected of him and what he can expect from us in return. [CIA] officer will therefore advise [him] at 4 Sept meeting that he is on "trial" status until 1 January 1990'.

Having analysed the unredacted sections, Richard Keen QC, respresenting Megrahi's co-accused, Lamin Fhimah, told the court it was 'abundantly clear' that much of the newly uncovered information was highly relevant to the defence, adding, 'I frankly find it inconceivable that it could have been thought otherwise... Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond'. 

In order words, the Crown had been caught out misleading the court. I do not suggest that Boyd did so deliberately, neither that McFadyen and Turnbull deliberately concealed evidence that they knew would be helpful to the defence. Motive is not the issue: what really matters is the quality of the Crown's judgement. 

Armed with the new information and the 36 additional cables, Keen and Megrahi's counsel, Bill Taylor QC, were able to demolish Giaka's credibility and with it the case against Fhimah, who was acquitted. Had the court taken Boyd at his word and the redactions not been lifted, Giaka might have left the witness stand with his credibility intact and Fhimah may well have been convicted along with Megrahi. 

The big remaining question raised by the McFadyen memo is: was it an isolated failure of judgement or the tip of the iceberg? The SCCRC found numerous items of significant evidence which the Crown had failed to disclose to Megrahi's lawyers. Did the prosecutors also satisfy themselves in each instance 'that there was nothing omitted which could assist the defence'? Only a full public inquiry can adequately answer such questions. It is high time that Salmond's government ordered one.

[My own 2007 account in The Scotsman of the shameful CIA cables episode can be read here. It contains the following paragraph:]

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.

[Had it been defence lawyers who had been caught misleading the court in this fashion, censure and severe professional consequences would inevitably have followed.]

A clear signal ...

[The following opinion piece is published today on the website of Scottish lawyers’ magazine The Firm. It comes from the pen of the magazine’s editor, Steven Raeburn.]

The publication of the SCCRC’s report into the case of Abdelbaset Ali Mohmed Al Megrahi (the redundant term ‘Lockerbie bomber’ is clung onto now only by the vanishingly few) sheds valuable and useful light on few corners of the Pan Am 103 debacle. However, more revealing than the contents themselves are the manoeuvrings surrounding its release, and what they reveal about the tainted, corrupted justice system that stood in the way of its publication for five long, unnecessary and criminally culpable years. 

The calibre of the Crown Office and its personnel can be judged fairly by the equally odious Shirley McKie fingerprint case, in which the entire coordinated monolith of the police, Crown Office and Law Officers held the moral low ground over a sustained fourteen year period, until an inquiry forced apologies to be issued earlier this year. The Pan Am 103 case is depressingly similar. 

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.

The UN appointed special observer to the Zeist proceedings, Hans Kochler, concluded that "the falsification of evidence, selective presentation of evidence, manipulation of reports, interference into the conduct of judicial proceedings by intelligence services," he observed at Megrahi’s trial were "criminal offences in any country." The Crown and Government efforts to suppress the SCCRC report between 2007 and now have sustained that criminality with disturbing consistency. 

Responsibility can be laid directly at the door of successive Lords Advocate from Fraser on. Elish Angiolini, who received the SCCRC report upon publication, was retained and inducted into Alex Salmond’s cabinet, voiding any possibility of judicial independence, creating a toxic blend in a case that - above all others - exemplifies the need for a separation of powers, a principle sadly lost in post-devolution Scotland. Under her watch, Crown Agent Norman McFadyen was reported to the police by MSP Christine Grahame, now head of the Justice Committee, for allegedly tampering with crucial evidence in this case. The machinery of justice was frozen into suspicious paralysis in response. 

A petition currently sits before Grahame’s Justice Committee calling for a wide ranging Pan Am 103 inquiry. In the second of his hurriedly released statements yesterday, Alex Salmond said the publication of the SCCRC report was “in many ways [..] far more comprehensive than any inquiry could ever hope to be,” sending as clear a signal as could be telegraphed to Scotland’s close-knit judicial coven not to initiate one.

By publishing the SCCRC report, journalism has stepped in where Scotland’s justice system - poorly led and manifestly unfit for purpose - continues to fail. Pens need to continue to be mightier than the current limp judicial swords.

Former Lord Advocate ... seriously misled the Megrahi Court claims book author

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

Former Lord Advocate, Colin Boyd QC, has been accused of misleading the Court during the trial of Abdelbaset al-Megrahi.

The claim, contained in the book Megrahi – You are my Jury, relates to the QC’s intervention in a matter involving secret CIA cables that contained details of discussions between the US agency and a Libyan ‘supergrass’ named Majid Giaka.

Giaka was a former work colleague of Mr Megrahi who had contacted the CIA claiming to have evidence linking the Libyan and his co-accused Al Amin Khalifa Fhima to the Lockerbie bombing.

Giaka was scheduled to give evidence to the Court in August 2000, but was delayed due to legal wrangling over the telex cables.

Demands by the Libyan’s defence team to see the cables in full led to the intervention by then Lord Advocate Colin Boyd, an episode described by book author John Ashton as “one of the most disgraceful episodes in the Crown Office’s recent history”.

Mr Megrahi’s defence team had requested full disclosure of the secret cables which had been heavily redacted for apparent security reasons.

Lawyers acting on behalf of the two Libyan’s were informed that the twenty five cables were all that existed and that the redacted areas covered general areas not relevant to the Lockerbie incident.

According to the book, Procurator Fiscal Norman McFadyen claimed that no-one from the Crown had seen the unedited cables and that the redacted material was irrelevant.

However it subsequently emerged that weeks earlier on 1st June 2000, members of the Crown Office had indeed seen the unedited cables, one of whom was Norman McFadyen and the other Alan Turnbull QC.

On 22 August on learning of this, Mr Megrahi’s legal team raised the issue with the Court, describing it as “a matter of some considerable importance”.

According to Ashton’s book, Bill Taylor QC argued that without access to the full cables, the defendants would be denied a fair trial, and said: “I emphatically do not accept that what lies behind the blanked out sections is of no interest to a cross examiner … Further, I challenge the right of the Crown to determine for the defence what is or is not of relevance to the defence case.”

Mr Taylor urged the Court to ask the Crown to obtain the complete copies of the cables from the CIA.

In a move, described as unusual by author John Ashcroft, Lord Advocate Colin Boyd then attended the Court in person and admitted that McFadyen and Turnbull had indeed seen the cables but repeated the Crown’s earlier assertions that the redacted areas had no bearing on the cables themselves or the case.

“While they may have been of significance to the Central Intelligence Agency, they had no significance whatsoever to the case” he said.

Mr 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 defence team eventually forced the Crown to hand over less redacted versions of the cables that contained, contrary to Boyd’s claims, crucial information about Giaka – including doubts about the value of his intelligence information.

Further sections detailed meetings with Giaka not included in the original documents.

Acting for the defence, Richard Keen QC, questioned claims by the Crown that the redacted sections were of no consequence

Pointing to their clear significance, he told the Court: “I frankly find it inconceivable that it could have been thought otherwise … Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond”

According to author John Ashton, Lord Advocate Colin Boyd – now Lord Boyd – had “seriously misled the Court”.

[My own 2007 account in The Scotsman of this shameful and discreditable episode can be read here. What is surprising and deeply regrettable is that the trial judges in their judgement made no mention of this disgraceful Crown conduct.  Had it been a defence advocate who had been detected misleading the court in this way, the matter would certainly not have been overlooked and the consequences for the advocate in question would have been dire.]