Mandela meets UK Lockerbie families

[What follows is excerpted from a report published on the website of The Independent on this date in 2002:]

Both Egypt and Tunisia have agreed to accept the Libyan convicted of the Lockerbie bombing to serve his sentence, if the Government is willing to transfer him from his Scottish prison, Nelson Mandela said yesterday.

The former South African president added that the bereaved families of Lockerbie victims he met yesterday did not oppose Abdelbaset Ali Mohmed al-Megrahi being moved from Glasgow's Barlinnie prison. Mr Mandela has called for Megrahi to be allowed a fresh appeal and for him to be permitted to serve his jail term in a Muslim country in the meantime. Mr Mandela has discussed the matter with presidents Hosni Mubarak of Egypt and Ben Ali of Tunisia.

"I told the relatives [of the Lockerbie victims] that he would go to a country trusted by Britain and the United States to serve his sentence, and the length of the sentence would be determined by the Scottish authorities," he said.

"Nobody opposed it, and I was very happy with their response. They appear to be open-minded, not withstanding the wounds and the scars they have suffered."

Tony Blair had dismissed the idea of Megrahi, a member of Colonel Gaddafi's secret service, being moved to another country. But Mr Mandela said he would try to change the Prime Minister's mind. Mr Mandela was speaking to journalists in London after he had met the Lockerbie families. (...)

Mr Mandela played a key role in persuading Colonel Gaddafi to hand over Megrahi and his co-defendant, Al-Amin Khalifah Fhimah, for trial at the specially constituted Scottish court at Zeist, in the Netherlands.

But he has expressed grave disquiet over the subsequent conviction of Megrahi for smuggling a bomb on board the Pan Am jet in 1988, killing 270 people. Megrahi, 49, is serving a life sentence after losing an appeal.

Mr Mandela said he had told the relatives how a UN representative and judges from the Organisation of African Unity had criticised the evidence against Megrahi.

[RB: A report on Mandela’s meeting with the UK Lockerbie relatives published on the BBC News website can be read here.]

False evidence

[This is the heading over a letter from Dr Jim Swire published in today’s edition of The Times. It reads as follows:]

MI6 and Sir Richard Dearlove are not alone in contributing to misleading their politicians (“Intelligence source was a proven liar”, July 8).

During the trial of the so called Lockerbie bomber, Abdul Baset Ali al-Megrahi, in 2000-01, the CIA trumpeted its “star witness” under the moniker of “Jiaka”. He had been on its payroll for years.

He was a Libyan informer who claimed to have seen the accused transiting Luqa airport in Malta, carrying a suitcase similar to that known to have housed the Lockerbie bomb. The judges at Zeist, in the Netherlands, insisted on access to CIA cables which exposed Jiaka as a fantasist and liar.

National intelligence structures may feel obligated to support their paymasters’ projects rather than the actual truth.

Is the Lockerbie bomber still out here?

[On this date in 2013, the doyenne of psychologists of memory and identification, Professor Elizabeth F Loftus, published an article about the evidence at the Zeist trial that was treated by the court as amounting to “identification” of Abdelbaset Megrahi as the purchaser of the goods fron Tony Gauci’s shop in Malta. The published article can be read here and the submitted manuscript here. What follows is the final section:]

My analysis identified a number of areas in which Gauci changed his testimony from one point in time to another. More specifically, the statements he gave relatively early on (nine months after the crime) before Al-Megrahi was a suspect differed in many respects from what Gauci would recall later after Al-Megrahi was a suspect. While the defense attorney did, at trial, point out some of the changes, it might have been useful to compile them and show the entire collection. Since of the major reasons why someone’s testimony changes from one point in time to another is that they have been supplied with new details, it would have been important to try to discover the new details that Gauci had been exposed to. After investigators began to look for Libyans, and began to suspect Al-Megrahi, what kind of information did Gauci receive, either deliberately or inadvertently?

This information, and more, was presented to the Scottish Criminal Cases Review Commission, a Commission that reviews cases post-conviction, and did so in this case. The Commission is an independent, public body, which was established in 1999, and bears the responsibility for reviewing alleged miscarriages of justice in Scotland. The Commission has the power to refer to the High Court of Justiciary any conviction regardless of whether appeals of that conviction have been heard previously. The Commission refers cases when it believes that a miscarriage of justice may have occurred. In Al-Megrahi’s case, the Commission expressed deep reservations about the conviction and concluded that it may have been a miscarriage of justice. Much of the world knows less about this turn of events, but much more about a different turn, namely that al-Megrahi was released from prison in 2009 and sent back to Libya on Compassionate grounds because of advancing cancer. That turn sparked outrage. Al-Megrahi lived with his cancer for a few years, and, as noted earlier, died in 2012. One can’t help but wonder whether the outrage over his release might be tempered if those angry individuals were to seriously examine the suspicious eyewitness testimony that led to Al-Megrahi’s conviction in the first place My examination has led me to wonder: Is the Lockerbie bomber still out here?

Kenny MacAskill’s prison visit

[On this date in 2009 The Sunday Times disclosed that Kenny MacAskill, the Scottish Government’s Cabinet Secretary for Justice proposed to have a meeting with Abdelbaset Megrahi in the context of his application for compassionate release and the Libyan Government’s application for prisoner transfer. The article reads as follows:]

Kenny MacAskill, the justice secretary, is to become the first British government minister to meet the man convicted of the Lockerbie bombing.

MacAskill has agreed to visit Abdelbaset Ali Mohmed al-Megrahi in prison before deciding if the Libyan should be allowed to serve the rest of his sentence in his home country.

The minister will announce later this month whether he will grant Libya's request for Megrahi to be placed in its custody under a transfer deal between London and Tripoli.

A condition of the treaty is that prisoners cannot leave the country while criminal proceedings are ongoing. Megrahi, 57, who has terminal prostate cancer, is believed to be prepared to drop his appeal against his conviction in order to spend the rest of his life close to his family in Libya. MacAskill also has the power to free him on compassionate grounds.

His decision to meet a convicted terrorist has provoked a backlash among American relatives of those who died in the 1988 bombing which killed 270 people. The justice secretary has said he wants to talk to all parties affected by the tragedy before deciding Megrahi's fate.

Bob Monetti, from New Jersey, whose 20-year-old son Rick was among the victims, accused MacAskill of giving the convicted murderer preferential treatment. "I don't understand why they would treat this man as special compared to everyone else who has been convicted of murder," he said.

[Commentary on the MacAskill visit to Megrahi can be found here.]

Tony Gauci in the witness box

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

The Lockerbie trial has heard that fragments of a baby romper suit recovered from the wreckage of Pan Am Flight 103 were traced back to a clothes shop in Malta.

The blue Babygro was said to have been in the suitcase carrying the bomb which blew the plane apart above Lockerbie.

All the items were bought by a Libyan man who went into Tony Gauci's outfitters in the Maltese town of Sliema just days earlier, the trial judges heard.

Mr Gauci picked out one of the accused - Abdelbaset Ali Mohmed Al Megrahi - as being someone who "resembled" the man who visited his shop, although he could not positively identify him.

The prosecution says the two Libyan suspects went to the shop in Sliema on 7 December, 1988, and bought clothes and an umbrella.

The charred remains of the items were later recovered from the bomb debris in and around Lockerbie.

Mr Gauci told the Scottish Court in the Netherlands that a Libyan man came into his shop - Mary's House, Tower Road, Sliema - about a fortnight before Christmas 1988.

The man looked around and when Mr Gauci invited him to try on some trousers he said they were for someone else.

The man then bought two pairs of trousers, two shirts, two cardigans, two pairs of pyjamas, a blue romper suit and, because it was raining slightly at the time, an umbrella.

"He left the shop to go to the taxi rank to get a taxi. He came back in the taxi to collect the clothing, which I took out to the taxi," said Mr Gauci.

It was not until September 1989 that Scottish and Maltese police officers went to the shop to confirm that the fragments of clothing linked to the suitcase holding the radio-cassette bomb had been purchased at Mary's House.

[RB: A devastating analysis by Dr Kevin Bannon of Tony Gauci’s evidence can be read here.]

Megrahi convicted on evidence designed to prosecute Abu Talb

[What follows is taken from an item posted yesterday on Dr Ludwig de Braeckeleer’s PT35B website:]

George Thomson writes:

Armed with the intelligence on the PFLP-GC’s activities in Neuss in October and the FAA Warning, the Scottish investigators on the ground, assisted by their American friends, were in no doubt that they were looking for the remains of a copper Samsonite suitcase which would contain a semtex-based IED concealed within a Toshiba Radio. The radio would be enclosed in a cardboard box along with an instruction manual. They even knew that the explosives within the radio would be wrapped in Toblerone type wrapping foil.

In no time whatsoever they “found” what they were looking for. […]

AG145 - debris from the identification plate of the luggage container which Feraday was satisfied was from a Toshiba 8016 or 8026 but then he changed his mind later on. [RB: information about AG145 can be found here and here.] At trial however the air accident investigator Claiden testified that the fold in the identification plate which harboured the debris identified as originating from a Toshiba HAD NOT BEEN CAUSED AT THE TIME OF THE EXPLOSION

A black explosion-damaged cardigan with Toblerone foil violently impacted into its fabric was found and initially was described as originating from the bomb suitcase, but later the classification was changed as the emphasis moved away from the PFLP-GC.

Then, impacted into various items of clothing which Gauci later remembered selling to “a suspect”, originally Talb, the scientists found pieces of the cardboard box, the instruction manual and various pieces of plastics and mesh which Hayes claimed was from the IED Radio.

In relation to the detonation device a report was submitted from the Scottish police to the Lord Advocate asking for the detention of various suspects who had been involved with the PFLP-GC in Neuss. In that report the police assert time after time that the bomb had been triggered by a barometric device.

The net was finally closing and by a spectacular piece of detective work a pair of trousers from the bomb suitcase was traced via the manufacturers on Malta to Tony Gauci’s shop where he remarkably remembered selling a variety of clothes to a suspect, which had turned up in the bomb suitcase. To be fair to Tony however he did not make the whole thing up from nothing, he was shown a variety of photographs of items said to originate from the bomb suitcase and he picked them out.

The slight fly in the ointment however is that the police claimed to have been led to Gauci by a manufacturer’s label (Yorkie) attached to the trousers and by a Stamped Number 1705 on a pocket which was an order number for Gauci’s Shop. Unfortunately we now have a police document which indicates that when the trousers first came into the possession of the police there was no such label attached and the number 1705 apparently jumps from one fragment of trousers to another depending on what report or which police statement you chose to read.

Gauci went some way to identifying Talb as the purchaser of the clothing. However Gauci’s identification would have been bolstered by the evidence of a witness with a shop nearby who made a definite identification of Talb being in his own shop at the relevant time. This shopkeeper’s evidence has never been heard.

So sure were the police that Talb was their man, that they even fabricated evidence of a piece of clothing found in his home in Sweden and originally described as a pair of child’s kick-trousers with a size and a manufacturer into being a Babygro with penguins on the front; the same type of course as described in the shipment note lodged at court to prove the evidence of Gauci and his lamb/sheep Babygro he claimed to have sold to the man.

I could go on and on with discrepancies in the case but I want to make the point that Megrahi was in my mind convicted on evidence much of which was designed to prosecute Talb and all they had to do to was change the tentative identification by Gauci of Talb to Megrahi and introduce the small fragment of circuit board, PT35b.

That’s what makes this case so different. Megrahi was convicted on false evidence originally intended to be used against someone else and if any of that evidence was tested in court by a defence team properly briefed by defence investigators then Megrahi’s name would be cleared.

Baset [Megrahi] would be pleased if that were to happen because on his deathbed he asked me to not only try to prove his innocence but prove that he was deliberately convicted on false evidence.

Pan Am guilty of wilful misconduct over Lockerbie

[What follows is the text of a report published on the website of The Independent on this date in 1992:]

Relatives of the Lockerbie victims last night welcomed an American jury's finding of 'wilful misconduct' by Pan Am as a major step forward in their fight for adequate compensation.

Jim Swire, the British representative of the relatives, said last night: 'It is an important victory. It opens the way for substantial compensation claims, but more than that, it means airlines will at last take security seriously because it will cost too much not to.'

After three days of deliberation the jury in Brooklyn ruled in favour of the relatives of the 270 victims of Flight 103, who sued the airline claiming the baggage handling had suffered from lax security. An unaccompanied suitcase held the bomb that exploded over Lockerbie on 21 December 1988.

The result could open the way to multi-million dollar damages claims against the Pan Am insurer, United States Aviation Insurance Group (USAIG). The airline is no longer flying. Airlines throughout the world could be forced to review their security in light of the ruling.

Another trial will be needed to assess any damages claim, and none has yet been scheduled. [RB: On 21 July 1992 the jury awarded the family of the victim damages of $9.23 million.]

Dr Swire said that money alone could never compensate for the loss of a relative, but welcomed the implications the ruling would have for airline security.

He said technology able to identify unaccompanied baggage - similar to that containing the Lockerbie bomb - already existed. But it was not being widely installed at airports because of the costs involved. He said the threat of having to settle massive compensation claims in the wake of the decision in the New York case would give airline companies and their insurers a financial incentive to introduce new security systems.

'It sickens me that these changes are spurred for financial rather than humanitarian reasons, but that's just the way it is.'

Peter Watson, British lawyer for the families, said on the BBC that the decision would force airlines to tighten security.

'It's a warning to the airline industry that if their security is as lax, poor and haphazard as Pan Am's was on this occasion, then they face fearful damages. That is the only way a court can bring this home to an airline.'

Yesterday's verdict was greeted with sighs of relief by the many relatives and friends of the victims who crowded the courtroom. The suit sought up to $500m (£277m) in damages from the airline, which would be paid by the USAIG.

Under international treaties the amount of damages is limited to $75,000 (£40,000) for each victim, but the 'wilful misconduct' verdict means that much higher damages can now be paid.

The outcome of the trial in the US also strengthens the case against Libya. The insurance company tried to persuade the jury that the bomb was put on the aircraft in London or Frankfurt because of a slip-up in a drug operation mounted by American intelligence and that there was little the airline could have done to prevent the bombing.

Lawyers for the families argued that Pan Am was criminally negligent in its security procedures at Frankfurt and elsewhere around the world, making it possible for a bomb to be put on board the flight from a connecting airline. The defence team believes, as do the Scottish police, that the bomb was placed on a flight in Malta and checked through to New York via Frankfurt and London.

Two Libyan intelligence agents have been charged in Scottish and American courts with engineering the bombing and Libya's refusal to hand them over for trial has led to sanctions being imposed by the United Nations Security Council.

Tehran meeting of 9 July 1988

“It is now widely accepted that the sequence of events leading to the Lockerbie disaster began on 3 July 1988, in the Persian Gulf. While sailing in Iranian territorial waters, the US Aegis-class cruiser Vincennes somehow mistook a commercial Iranian Airbus that had just taken off from Bandar Abbas airport for an Iranian F14 fighter closing in to attack and shot it down, killing all 290 passengers on board, most of them pilgrims on their way to Mecca.

“Predictably, the United States government not only sought to excuse this blunder but lied to Congress about it, lied in its official investigation of the incident, and handed out a Commendation Medal to the ship's air-warfare coordinator for his 'heroic achievement'. (Although he earned nothing but notoriety for the kill, the cruiser's commander, Capt Will Rogers III, still insists that the Vincennes was in international waters at the time, and that he made the proper decision. After being beached in San Diego for a decent interval, he was allowed to retire honorably in August 1991.)

“The Iranians were incensed. Paying the US Navy the compliment of believing that it knew what it was doing, they chose to construe America's evasive response to their complaint before the UN Security Council as a coverup for a deliberate act of aggression rather than as an attempt to hide its embarrassment. (They were already smarting from what they perceived to be America's failure to honor its secret arms-for-hostages deal.)

“To reaffirm the power of Islam, and in retribution for the injury, the Ayatollah Khomeini himself is said to have ordered the destruction of not one, but four American-flag airliners. But discreetly. Not even the most implacable defender of an unforgiving faith could afford to provoke an open war with 'the Great Satan', particularly at a time when he was obliged to look to the West for technology and trade to rebuild an Iranian economy all but shattered by the long war with Iraq.

“His minister of the interior, Ali Akbar Mohtashemi, was placed in charge of planning Iran's revenge. At a meeting in Tehran on 9 July 1988, he awarded the contract to Ahmed Jibril, a former Syrian army officer and head of the Popular Front for the Liberation of Palestine-General Command (PFLP-GC), based in Damascus. Although Jibril later denied his complicity in the bombing, he was reported to have bragged privately that the fee for the job was $10 million. Unnamed US government sources let it be known that the CIA had traced wire transfers of the money to Jibril's secret bank accounts in Switzerland and Spain.)”

From Trail of the Octopus by Donald Goddard and Lester K Coleman (1993 UK; 2009 USA), pages 15-16.

Entire conviction based on flawed premises

[On this date in 2002 the Organisation of African Unity’s Commission of Jurists on the Lockerbie Case presented its report to the summit of OAU Heads of State and Government being held in Durban, South Africa. The following are two paragraphs from the summary of the report:]

1.4  After analysing the judgment in depth with reference to both the Scottish criminal law and procedure as well as universally accepted principles of fair trial, the Commission arrived at the following conclusions: (i) The entire conviction was based upon flawed premises. (ii) The judgement violated the general principles of criminal law and procedure that any reasonable doubt should inure to the benefit of the accused. (iii) The judgement was characterised by strained arguments and inadequate proof of the vital elements. (iv) On important occasions in the judgement, the burden of proof appeared to have been reversed to the prejudice of the defence. (v) The link between the accused and the commission of the crime was at best tenuous, and at worst non-existent.

5 There are numerous flaws in the reasoning which led to both the initial conviction and the subsequent dismissal of the appeal and numerous reasons why Mr Al Megrahi's conviction should be quashed and set aside we respectfully submit, but the most fundamental one, as argued in the Commission's main report, is that the case against him was simply not made out.

Lockerbie investigation, prosecution and adjudication require scrutiny

[This blog is nine years old today. I had hoped when I started it that Abdelbaset Megrahi’s conviction would have been quashed long before now. But the struggle continues. Here, from 7 July 2007, is the first article specially written for the blog:]

The SCCRC Decision

On 28 June 2007 the Scottish Criminal Cases Review Commission referred Abdel Basset Al-Megrahi’s conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, to the Crown and to the High Court) extends to over 800 pages, accompanied by thirteen volumes of appendices. The Commission, in the published summary of its findings, rejected submissions on behalf of Megrahi to the effect that evidence led at the trial had been fabricated and that he had been inadequately represented by his then legal team, but went on to indicate that there were six grounds upon which it had concluded that a miscarriage of justice might have occurred. Strangely enough, however, only four of these grounds are enumerated in the summary. They are as follows:

“A number of the submissions made on behalf of the applicant challenged the reasonableness of the trial court's verdict, based on the legal test contained in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Commission rejected the vast majority of those submissions. However, in examining one of the grounds, the Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House, took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.

“New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in thearea of Sliema in which Mary's House is situated. In the Commission's view,taken together with Mr Gauci's evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant was in Malta.

“Additional evidence, not made available to the defence, which indicates that four days prior to the identification parade at which Mr Gauci picked out the applicant, he saw a photograph of the applicant in a magazine article linking him to the bombing. In the Commission's view evidence of Mr Gauci's exposure to this photograph in such close proximity to the parade undermines the reliability of his identification of the applicant at that time and at the trial itself.

“Other evidence, not made available to the defence, which the Commission believes may further undermine Mr Gauci's identification of the applicant as the purchaser and the trial court's finding as to the date of purchase.”

The implications for the verdict of guilty

The reasons given by the Commission for finding that a miscarriage of justice may have occurred in this case are not limited to the effect of new evidence which has become available since the date of the original trial and the non-disclosure by the police and prosecution of evidence helpful to the defence. The prima facie miscarriage of justice identified by the Commission includes the trial court’s finding in fact on the evidence heard at the trial that the clothes which surrounded the bomb were purchased in Malta on 7 December 1988 and that Megrahi was the purchaser. This was the very cornerstone of the Crown’s case against him. If, as suggested by the Commission, that finding in fact had no reasonable basis in the evidence, then there is no legal justification whatsoever for his conviction by the trial court.

The implications for the Scottish criminal justice system

The present writer has always contended that no reasonable tribunal could have convicted Megrahi on the evidence led at the trial. Here is just one example of the trial court’s idiosyncratic approach to the evidence. Many more could be provided.

A vitally important issue was the date on which the goods that surrounded the bomb were purchased in a shop in Malta.There were only two live possibilities: 7 December 1988, a date when Megrahi was proved to be on Malta and 23 November 1988 when he was not. In an attempt to establish just which of these dates was the correct one, the weather conditions in Sliema on these two days were explored. The shopkeeper’s evidence was that when the purchaser left his shop it was raining so heavily that his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi. The unchallenged meteorological evidence led by the defence established that while it had rained on 23 November at the relevant time, it was unlikely that it had rained at all on 7 December; and if there had been any rain, it would have been at most a few drops, insufficient to wet the ground. On this material, the judges found in fact that the clothes were purchased on 7 December.

On evidence as weak as this how was it possible for the trial court to find him guilty? And how was it possible for theCriminal Appeal Court to fail to overturn that conviction? The Criminal Appeal Court dismissed Megrahi’s appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court’s factual findings at all (though it is clear from their interventions during the Crown submissions in the appeal that at least some of the judges were only too well aware of how shaky certain crucial findings were and how contrary to the weight of the evidence).

It is submitted that at least part of the answer lies in the history of the Scottish legal and judicial system. For centuries judges have accorded a specially privileged status to the Lord Advocate. It has been unquestioningly accepted that, though a political appointee and the government’s (now the Scottish Executive’s) chief legal adviser, he (now, of course, she) would at all times, in his capacity as head of the prosecution system, act independently and without concern for political considerations and would always place the public interest in a fair trial above the narrow interest of the prosecution in gaining a conviction. This judicial vision of the role of the Lord Advocate was reinforced by the fact that, until the Scottish Judicial Appointments Board commenced operations in 2002, all Scottish High Court Judges (and sheriffs) were nominated for appointment to the Bench by the Lord Advocate of the day. This meant that, in all criminal proceedings, the presiding judge owed his position to the person (or one of his predecessors in office) who was ultimately responsible for bringing the case before him, and for its conduct while in his court.

The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism -- indeed casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction. To illustrate this in the context of the Lockerbie trial it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the United States under a witness protection programme.

Giaka’s evidence was ultimately found by the court to be utterly unworthy of belief. This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony. Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been immensely more difficult and perhaps impossible.

Yet the Crown strove valiantly to prevent the defence obtaining access to these cables.

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

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

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

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

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

Beyond the Lockerbie trial, the failure of the Crown to place the public interest in a fair trial above the interest of the prosecution in obtaining convictions is illustrated by the extent to which the Lord Advocate has recently had to be dragged, kicking and screaming, through the Privy Council in London before making available to the defence material in the prosecution’s possession that no-one could conceivably deny was of relevance and assistance in the accused person’s defence: see Holland v HMA 2005 SCCR 417; Sinclair v HMA 2005 SCCR 446. So much for the fairness of the trial being the Crown’s primary and predominant motivation!

“When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.”

(I Corinthians xiii. 11). It is high time for all involved in the Scottish criminal justice system to put away childish things. All of us, judges included, are surely too old to believe any longer in fairy tales. Fairy tales can be convenient and comforting and can bolster our self esteem. But, as in the case of the belief that the Crown can uniformly be relied upon always to act selflessly in the public interest, they can be dangerous and, if acted upon, work terrible injustice.

It is submitted that the Lockerbie case demonstrates just how necessary it is, if public confidence is to be maintained, for the Scottish Executive to institute a high-powered, independent, investigation into all three aspects – investigation, prosecution and adjudication -- of the Scottish criminal justice system.

Where are Scotland's investigative journalists?

[What follows is excerpted from an article headlined Scottish newspapers accused of shirking investigative duties that was published in the Sunday Herald on this date in 2008:]

When readers are asked what they want more of in newspapers the answer is often great, jaw-dropping scoops. Yet investigative reporting - the discipline behind many such stories - is increasingly seen by many newspaper executives as too expensive to bother with.

This is certainly the view of Professor Hans Köchler, the former UN monitor of the Lockerbie trial, who has attacked the Scottish media for its coverage of Abdelbaset Ali Mohmed al-Megrahi's continuing appeals against his conviction.

Köchler believes Scottish journalists are becoming unwilling to question the establishment version of events and work under editors and executives who refuse to finance proper reporting. He says he has a list of publications and journalists he believes have failed to do their jobs properly, which he may seek to publish at a later date.

Says Köchler: "As far as Lockerbie is concerned I can't understand why more isn't being done by the European country that was most concerned with it. There is a lot at stake: the rule of law, security, the role of international terrorism. Why isn't somebody trying to find out why the authorities are now trying to withhold evidence and delaying everything?"

In an earlier letter to veteran campaigner Robbie the Pict (...), in which Köchler raised the issue of a potential media blackout, he simply wrote: "Where are Scotland's investigative journalists?"

Köchler claims that editors reduced coverage under establishment pressure. Some journalists closely related to the story argue that the real reason why Lockerbie is off the agenda is because people are tired of it, but Köchler claims it is a symptom of a wider problem that cuts across the profession. (...)

In Scotland there are no dedicated investigative teams nowadays, although most papers, especially the Sundays, will allow reporters to go off-diary if they can convince their editors they are onto something interesting. This has resulted in some notable stories including, according to O'Neill, the "forensic" work done by Sunday Herald Scottish political editor Paul Hutcheon when he broke the undeclared donations story that eventually led to Wendy Alexander's resignation. (...)

BBC lifer Marcus Ryder was appointed head of BBC Scotland's investigative unit in September last year. He has a 17-strong investigative team to work with at Pacific Quay, producing radio and television, including an increasing number of episodes of Panorama.

Ryder is adamant that investigative work is crucial to all journalism, across all Scottish media types. He says the key to success is the people: "It's all to do with talent. If you invest in journalists then you get good stories."

But Harry Reid, the former Herald editor and author of Deadline: A History Of The Scottish Press, warns against too much hype. He says the history of investigative journalism is filled with teams who failed to come up with enough scoops to justify their existence and succeeded only in annoying colleagues by being a "newspaper within a newspaper".

"When I was at the Sunday Standard the defunct liberal broadsheet we had an investigative team made up of Roddy Forsyth, George Hulme and David Scott. All great journalists but, for some reason or another, they did not produce one outstanding story," he says.

While this may be fair comment, few would argue that Scottish journalism is ill-equipped to dig out the juiciest stories in the country.