Crown caught out misleading the court

[On this date in 2000, the procurator fiscal in charge of preparations for the Lockerbie trial wrote a highly significant memorandum to two of the senior advocate deputes prosecuting the case. A redacted copy of the memorandum can be read here. When the memorandum eventually came into the public domain more than a decade later John Ashton commented as follows:]

Welcoming the release of the Scottish Criminal Cases Review Commission's report on the conviction of Abdelbaset al-Megrahi on 25 March [2012], 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. MacFadyen 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.

    

MacFadyen 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 MacFadyen'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 MacFadyen'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 MacFadyen 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 MacFadyen and Turnbull deliberately concealed evidence that they knew would by 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 MacFadyen 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. 

How UK Government hid secret Lockerbie report

[This is the headline over a report published in The Herald on this date in 2012. It reads as follows:]

It has been hidden, blocked and kept secret by the UK Government for more than 20 years, but The Herald can reveal for the first time the contents of the top-secret Lockerbie document that the UK tried to prevent us from publishing.

The highly classified document, which has never even been aired in public or shared with the courts, originally came from Jordan and indicates that a Palestinian terrorist group was involved in the bombing that killed 270 people – something the UK Government has vehemently denied.

The UK Government has gone to considerable lengths to prevent details of the document – which casts further doubt on the safety of the conviction of Abdelbaset Ali Mohmed al Megrahi – being published by The Herald.

It has threatened legal action to stop publication of the newspaper and asked the paper to sign up to a court-approved gagging order.

Our decision to publish details of the document, which was obtained by the Crown Office but never shown to the defence team, will prove highly embarrassing to the Crown, the Foreign and Commonwealth Office and the Office of the Advocate General, whose lawyers have worked tirelessly to prevent it ever being even discussed in public.

The document incriminates the Popular Front for the Liberation of Palestine – General Command (PFLP-GC) in the Lockerbie bombing.

The PFLP-GC were the original suspects in the investigation into the biggest terrorist atrocity ever to have been committed in mainland Britain. However, by 1991 police and prosecutors were entirely focused on Libya. Since then politicians and the investigating authorities have denied the possibility of their involvement, instead blaming the whole atrocity on Libya.

Repeated, high-level attempts to block the report indicate it is vital to unearthing the truth about the Lockerbie bombing. The UK Government arranged for the document to be covered by Public Interest Immunity on national security grounds. This prevented it from being shared with the defence but does not prevent publication by a newspaper.

A source said: "The document itself is historical and regimes have changed so it is hard to believe it presents any risk at all to national security. It originates from Jordan and incriminates the Palestinian terror group the PFLP-GC. The contents are very important but what makes them so much more significant is the lengths the UK Government and others have gone to in order to prevent anyone from seeing the document.

"This is the most remarkable piece of evidence. It does not rule out the Libyans but it does indicate that others were involved.

"It also shows the lengths the UK Government was prepared to go to in order to ensure that any evidence undermining their case against Libya would never see the light of day."

It is thought the document could fatally undermine the case against Abdelbaset Ali Mohmed al Megrahi. He died of cancer last month without knowing the contents of this report.

The Scottish Criminal Cases Review Commission (SCCRC) team that investigated Megrahi's conviction discovered the existence of the document during their four-year investigation which concluded in 2007. Their 800-page report explains that their investigative team were allowed to access the document in Dumfries police station but they were prohibited from removing the notes they made on it and the document itself.

The commission was only able to access the document after signing up to a special agreement not to divulge the contents and was told by the Crown that "a conclusion was reached that the documents did not require to be disclosed in terms of the Crown's obligations".

The SCCRC then ruled that the contents were sufficiently disturbing for a court to have believed the conviction could have been a miscarriage of justice. The failure to disclose the document was one of the six grounds on which the case was referred back for a fresh appeal in 2007.

To date, only the Crown, UK Government and SCCRC team know the contents of this closely guarded document.

Megrahi's legal team pushed for disclosure of the document once it was revealed by the SCCRC. The Scottish courts were in the process of appointing special advocates and a special judge who would decide in secret whether the contents of the document could be disclosed when Megrahi dropped an appeal in 2009 in order to speed his return to Libya. He was released on compassionate grounds in August 2009 because he was suffering from terminal prostate cancer.

This new evidence and the fact it points to the guilt of non-Libyans will also prove embarrassing for the prosecution who failed to share the document with the trial court and who have subsequently argued that the investigation should focus on Libya alone.

A spokesman for the UK's Foreign and Commonwealth Office said: "The UK Government provided all relevant information on the Lockerbie bombing to the Scottish authorities, who considered it as part of the investigation which led to Megrahi's conviction. Any suggestion of 'hiding' documents is simply incorrect.

"The Government entered into a dialogue with The Herald in line with its long-established practice, supported by successive governments, to seek to prevent publication of any material that could cause significant harm to the UK's international relations and national security. We have consistently made clear that we sought to do this through dialogue rather than legal action".

Chapter 25 of the Scottish Criminal Cases Review Commission's Statement of Reasons refers to material which the Crown had proactively disclosed to the Commission during its review of Megrahi's conviction. The Crown claim they wanted to provide this information to Megrahi's legal team during the second appeal and made this clear to the court, but this could not be done because of the UK Government's Public Interest Immunity Certificate.

A spokesman for the Crown Office said: "The suggestion that the PFLP-GC was responsible for the Lockerbie bombing was fully considered by the trial court following the incrimination of this terrorist group by Megrahi during his trial and does nothing to undermine the Crown's case that Megrahi acted with others in the bombing of flight Pan Am 103.

"All material which met the Crown's disclosure obligations in relation to the PFLP-GC was properly disclosed to the defence before the trial and this was confirmed by the SCCRC's investigation.

"The court concluded that the conception, planning and execution of the plot which led to the bombing was of Libyan origin. The court was, of course, only dealing with evidence, not matters of opinion or conjecture."

Location of bomb suitcase

[What follows is the text of Glasgow University’s Lockerbie Trial Briefing Unit’s report of proceedings at Camp Zeist on 31 May 2000:]

The main evidence related to the location of the device said to have been located in the baggage container [AVE 4041]. Air accident investigators indicated that the container had been destroyed by a 'high energy event' - probably an explosion. The thrust of their evidence was that such a device could not have been on the container floor. The emphasis of defence cross-examination was that it was possible that any device could have been on the floor. The location of the device is crucial to the Crown case, as if the suitcase in which it was allegedly contained was on the floor, then it could not have been loaded in Malta.

The main Crown witness was Professor Christopher Peel, who had created a scientific model by which he claimed to be able to determine the exact size and location of the device. His evidence was challenged in two ways. First it was suggested that he had earlier espoused a different model and had changed his version of the facts to fit his new theory. His response was that he had not done so consciously, and that the model he ultimately applied was the most appropriate. Secondly, his calculations were the subject of a sustained assault with a view to suggesting he had fallen into error. He maintained that they were accurate.

It should be noted that it is quite common in criminal trials for counsel for the defence to attack the evidence of key experts for the Crown in terms of the soundness of the scientific basis for their theories, and/or the accuracy of the application of the scientific criteria to the facts.

Judges to view confidential Lockerbie papers

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

The judges sitting in the latest stage of the Lockerbie bombing appeal are to read the documents that the UK Government wants kept from the defence.

The Lord Justice General, Lord Hamilton, Lords Kingarth and Eassie yesterday ordered the documents to be delivered to the court within the next week.

A decision on whether to conduct further hearings in relation to the documents in private, and whether to appoint a security-vetted special advocate to represent Abdelbaset Ali Mohmed al-Megrahi, the Libyan appealing against conviction of planting the bomb, will be taken after the judges have seen the two sensitive papers.

Both documents are the subject of public interest immunity certificates by Foreign Secretary David Miliband, who has stated that disclosure would cause real harm to national security. The Scottish Criminal Cases Review Commission, on whose reference the case is now before the appeal court, considered that failure to disclose one of the papers was a ground on which the court might consider that there had been a miscarriage of justice.

In court yesterday Advocate General Lord Davidson QC, for the UK Government, denied that he was prepared to agree to a suggestion by Crown counsel Ronald Clancy QC that summarised or redacted versions of the documents could be given to the defence.

Defence counsel Maggie Scott QC objected to the proposal for a special advocate to represent Megrahi, claiming it would deny him a fair hearing. 

Denial meant for domestic political consumption

[What follows is excerpted from a report published on the BBC News website on this date in 2002:]

Libya has denied suggestions by a New York law firm that it offered $2.7bn to compensate the families of the victims of the 1988 Lockerbie disaster as part of a deal to lift sanctions.

"Libya has nothing to do with this so-called agreement and is not a party to it," an official statement said.

However, it conceded that Libyan businessmen and lawyers had held talks with lawyers of the families, though it said it had not been informed officially.

The BBC's Justin Webb in Washington says Libya's denial could be meant for domestic political consumption.

But he adds that it underlines the difficulties the world community has in dealing with Libya's leader, Muammar Gaddafi, and the potential for any deal to fall apart.

A partner in Kreindler and Kreindler, the firm representing the victims' families, told the BBC earlier on Wednesday he expected Libya to admit responsibility for the bombing very soon - perhaps within a couple of weeks.

The British Foreign Office said the Libyan, British and American officials were due to meet in London on 6 June to discuss the question.

Under the alleged deal, each victim's family would receive $10m, but 40% of the total money would be disbursed when UN sanctions were lifted and another 40% when the US sanctions were removed.

The remaining 20% would be paid when Libya was removed from the US State Department's list of sponsors of international terrorism.

But the US rejected the offer, saying Libya had to accept responsibility for the bombing.

"The compensation is something that the families have to work out with the Libyans," a State Department official told the AFP news agency.

"The sanctions are a governmental matter," he added.

The UK Foreign Office welcomed the offer, if genuine, as "a sign that Libya wishes to respond to the requirements of the UN resolutions".

However, a Foreign Office spokesman also said Libya would need to comply with all UN resolutions for sanctions to be lifted.

The admission of responsibility is a particular sticking point with officials and relatives alike.

Charles Kreindler, from the company Kreindler and Kreindler, speaking on the BBC's The World Today programme, said the admission could come within weeks.

"We could see Libya accept responsibility in the near future - perhaps in the next couple of weeks," Mr Kreindler said. (...)

The relatives also want to see Libya confess its guilt in the affair. "If Libya is still not willing to acknowledge they planned and committed the mass murder of 270 people and issue and comply with all of the conditions of the US Government and UN security council - then everything given to the families would be blood money," said Vicky Cummock, whose husband was killed. Her views were echoed by Dan Cohen, whose daughter Theo was murdered in the bombing. "Libya's got to do something else too, they have got to come clean on this," Mr Cohen said. "I don't want Libya taken off the terrorism list in the United States, I'll be damned if I'm going to become a cheerleader to rehabilitate the person who murdered my daughter," he added.

Astonishing Foreign Office threat to preserve Lockerbie secrecy

[What follows is excerpted from a report that appeared on the website of The Herald on this date one year ago:]

Tory MP threatened to 'pull edition of Herald' over Lockerbie story

It would have been an action unheard of in the Scottish press - the UK Government pulling an entire edition of a newspaper in a bid to suppress a secret document.

But that's exactly what the Foreign and Commonwealth Office (FCO) threatened to do to The Herald in 2012 when it sought to publish details of a report implicating a Palestinian terror group in the Lockerbie bombing.

The full details of what happened were published yesterday in Kenny MacAskill's new book on the atrocity - and the FCO is again taking action.

The government department has said it is "considering the contents" of the book, The Lockerbie Bombing: The Search for Justice, amid claims it may breach of Official Secrets Act.

Mr MacAskill reveals that at the time the Herald was seeking to publish the information, he took a call from Tory MP Alistair Burt, who was working with the FCO. [RB: He was a junior minister in the Foreign and Commonwealth Office.]

"He threatened not just to pull the Herald's story, but to pull the whole edition of the newspaper," he said.

"I was incredulous. I told him that the people of Scotland would definitely notice if there was no Herald the next day.

"It really showed the extremes the UK Government was prepared to go to to stop the publication of something fundamental to Scotland's leading criminal case."

The document was subject to Public Interest Immunity, which prevented its release to the defence in the trial of Abdelbaset al-Megrahi, the Libyan convicted of the bombing.

After taking legal advice, the Herald ran the story detailing the main points of the document, including that it came from Jordan and implicated the Popular Front for the Liberation of Palestine-General Command (PFLP-GC) in the December 1988 attack.

Certain information was not available to The Herald at that time, however it has all now been revealed in Mr MacAskill's book.

It is understood that the FCO requested a copy of the book on Sunday ahead of Thursday's publication, but were not provided with one as officials refused to rule out seeking an injunction.

The PFLP-GC were the original suspects in the investigation into Lockerbie, however by 1991 police and prosecutors were entirely focused on Libya.

This document naming the terror group was repeatedly suppressed at a high-level, despite sources claiming it presented little risk to national security.

In 2012, a source told The Herald: "The contents are very important but what makes them so much more significant is the lengths the UK Government and others have gone to in order to prevent anyone from seeing the document.

"This is the most remarkable piece of evidence. It does not rule out the Libyans but it does indicate that others were involved."

Mr MacAskill, who claimed the suppression of the document had more to with keeping the Jordanians happy so that radical cleric Abu Qatada could be deported from the UK, admits in his book that he believes the PFLP-GC were involved in the plot which killed 270 people.

The former politician, who made the controversial decision to release Megrahi on compassionate grounds in 2009, also raises doubts over the identification of Megrahi buying clothes from a shop in Malta that were found wrapped around the bomb.

However, he is now facing claims it is "dumbfounding" and "hypocritical" for a former justice minister to make such assertions that the case against Megrahi was flawed.

Robert Black QC, one of the architects behind Megrahi's trial who now heads up the Justice for Megrahi campaign, said: "Many of the things that Kenny is saying are the things that we've been saying for years.

"He said on the radio that there should be a new inquiry into Lockerbie - we've been asking for that for years, and it was him we were asking.

"It's only now that he doesn't actually have any power to do something that he's agreeing with us." 

Sidelining Megrahi’s chosen lawyers

[What follows is excerpted from a report published in The Scotsman on this date in 2008:]

The Westminster Government set out a "remarkable" proposal yesterday for judges to go into private session during a preliminary hearing in the Lockerbie bomber's appeal.

Under the plan, claimed to be in the interests of national security, not only would the public be excluded, but Abdelbaset Ali Mohmed al-Megrahi's legal team would also be denied entry. He is seeking access to a classified document, and a vetted lawyer would be appointed to represent his interests at the hearing.

The behind-closed-doors session of the Court of Criminal Appeal would be the first of its kind in Scotland.

"This may initially seem remarkable, and I accept that," said Lord Davidson, QC, the Advocate-General for Scotland, on behalf of the foreign secretary, David Miliband. "This is an area of very considerable difficulty and one forced on the government because of extraordinarily difficult times...in the prevention of terrorism," he added.

Megrahi's lawyers are expected to give their response to the proposal today. (...)

[Megrahi] lost an appeal in 2002, but last year the Scottish Criminal Cases Review Commission referred the case back to the appeal court. One of the reasons cited was that there may have been a miscarriage of justice because the Crown had not disclosed to the defence a document which an unidentified country, not the United States, had provided to the UK government in 1996. It is understood the paper relates to the timer alleged to have been fitted in the bomb.

Megrahi's defence team petitioned the appeal court, seeking access to the document and related papers. In response, Mr Miliband issued a public interest immunity (PII) certificate, stating: "It would cause real harm to the national security of the UK because of damage to counter-terrorism liaison and intelligence gathering between the UK and other states."

The appeal court has said there should be a hearing to consider the merits of the foreign secretary's public interest immunity plea. The current hearing is to determine the procedure to be followed at the hearing on the merits.

Lord Davidson said the Government was entitled to take steps to protect UK security.

His proposal was that the document be disclosed to a five-strong appeal Bench and a "special representative" who would look after Megrahi's interests.

Minor nutjobs

What follows is an item originally posted on this blog on this date in 2011.

Making curiosity uncool…

[This is the heading over an item posted today on bensix's blog Back Towards The Locus. It contains the following:]

I’ve noted how media critics of “conspiracy theories” aren’t just opposed to grandiose, unfounded claims but to suspicion of official or quasi-official narratives. Here are some notes on how the charge of “conspiracy theory” works to discredit this scepticism.

For example, with regards to the Pan Am attack, Geoffrey Robertson wasted no time in dismissing sceptics of Megrahi’s guilt…

"If Megrahi was guilty of the Lockerbie bombing (and, conspiracy theories aside, the evidence justified the verdict), then Gaddafi must have given the order…"

I will say this for Robertson: he’s remarkably efficient. What’s the point of explaining the biased procedure, dodgy witnesses and meager evidence of the prosecution when you can dismiss all scepticism as the work of minor nutjobs?

[RB: Quite. Minor nutjobs like Benedict Birnberg, Ian Hamilton QC, Hans Koechler, Anthony Lester QC, Len Murray, Gareth Peirce and the Scottish Criminal Cases Review Commission, to name but a few.]