Megrahi biographer John Ashton and the Crown Office

[On his Megrahi: You are my Jury website John Ashton has today published an item headed Information is free but everywhere it is in chains.  It reads in part:]

On 18 February this year I sent the following request to the Crown Office press office, which forwarded it to the CO’s freedom of information unit:

I am writing about the Lockerbie bombing and would be grateful if the Crown Office would answer some questions about the following important items of documentary evidence.

PT/82 and PT/88

These documents contain the results of tests conducted on various pieces of Lockerbie debris at the Royal Armaments Research and Development Establishment (RARDE). PT/82 contains, inter alia, results of metallurgy tests conducted on the fragment of circuit board PT/35b, while PT/88 contains, inter alia, the results of similar tests conducted on a control sample circuit board, DP/347a, which the police had obtained from the Swiss company Mebo and which was from the same manufacturing batch as those used in the Mebo timers that were supplied to Libya. The tests established that there was a very significant dissimilarity between the two items, namely, that the circuitry of PT/35b was plated with pure tin, whereas the circuitry on DP/347a was plated with an alloy of 70% tin and 30% lead. The documents each contain a handwritten note by RARDE scientist Allen Feraday, dated 1.8.91, which confirm the results. The pure tin plating of PT/35b would have required an entirely different manufacturing process to that used to plate DP/347a. Together the two documents contradict Mr Feraday’s claim, which he made in his forensic report for the Crown and repeated in evidence at trial, that PT/35b’s ‘materials and tracking pattern’ were ‘similar in all respects’ to those of DP/347a. The documents each have a Dumfries and Galloway police label dated 8 November 1999.

Questions:

1) Were the documents passed by the police to the prosecution team prior to the trial of Abdelbaset al-Megrahi and Lamin Fhimah?

2) If they were, why were they not disclosed to the defence?

3) Who made the decision not to disclose the documents to the defence?

D8624
This document contains, inter alia, two versions of a memorandum from Detective Inspector William Williamson to Senior Investigating Officer Stuart Henderson, the first dated 16.3.90 and the second 3.9.90. Both of these reported upon scientific tests conducted on PT/35b as part of the investigation of its origin. Both state:

‘Without exception it is the view of all experts involved in the PCB [printed circuit board] Industry who have assisted with this enquiry that the tin application on the tracks of the circuit was by far the most interesting feature. The fact that pure tin rather than a tin/lead mixture has been used is very unusual.’

None of the material disclosed to the defence pre-trial contained similar references to the fact that PT/35b’s pure tin plating was ‘very unusual’.

Questions:

4) Was D8624 passed by the police to the prosecution team pre trial?

5) If it was, why was it not disclosed to the defence?

6) Who made the decision not to disclose it to the defence?

Statement S3743A by Detective Inspector Watson McAteer
In this statement DI McAteer reported:

‘About 1000 hours on Friday, 22nd September, 1989, along with the B.K.A. Airport enquiry team and F.B.I. special agent Whittaker, I visited the V3 interline station, located within the airfield at Frankfurt Airport. During the course of this visit I observed two operators using Gate Number 206.  These operators worked as a team with one unloading baggage from the wagon onto the conveyor belt which feeds through to his colleague who remains seated within the coding gate booth.  The coder then examined the luggage Tags on each piece of luggage prior to keying the details into the computer system.  After completing this task, when the wagon had been completely unloaded, the coder entered the details on a work sheet located next to the key board within the coding gate.  When this particular operation had been completed both workers walked away from the gate leaving it completely unattended, with the computer switched on and operable.  Within the space of one minute, I observed a V3 worker carry a single suitcase from a batch located some fifty yards from gate 206 to that particular gate.  This worker entered gate 206 coding booth and after keying details into the computer sent the single piece of luggage into the system.  This operation was started and completed in less than fifteen seconds with no entry being made on the work sheet which was still in situ within the gate. Through FBI agent Whittaker I questioned the FAG supervisor Herr Zimmerman regarding this practice.  Herr Zimmerman reluctantly agreed that such a practice was not unusual.’

At trial the defence called Mr Whittaker as a witness and questioned him about this incident. When asked if he mentioned the incident to anyone, Mr Whittaker said only that he had discussed it with DI McAteer and, within a day or two, the BKA.   Under cross-examination by Advocate Depute Alan Turnbull QC, he said he couldn’t be certain that the baggage handler who keyed in the single item of baggage had not filled out the worksheet.  Asked, ‘Do I take it that you would not be close enough to see whether this particular worker made an entry in a notebook?’ he replied, ‘It would be very likely that that could have been missed, yes.’

If the prosecution team had been in possession of S3743A, they should have been aware that: a) DI McAteer expressed no doubts that baggage handler who keyed in the single item had not recorded the transaction on the worksheet; b) according to DI McAteer, Mr Whittaker discussed the incident, not only, with the BKA, but also with a FAG supervisor; and c) according to DI McAteer, the supervisor described the practice as not unusual – a very significant admission when viewed in context.

If the statement had been disclosed to the defence, they would have been able to challenge Mr Whittaker’s evidence and make stronger submissions in respect of the possibility that the primary suitcase was ingested at Frankfurt airport.

Questions:

7) Was S3743A passed by the police to the prosecution team pre trial?

8) If it was, why was it not disclosed to the defence either before, or after, Mr Whittaker testified?

9) Who made the decision not to disclose it?

I look forward to your response.

Yours sincerely,

John Ashton.

Under the Freedom of Information (Scotland) Act, the Crown Office should have responded within 20 working days, unless it needed to consider the public interest test, in which case it should have informed me within that 20-day limit. It failed to respond until 19 June, when it sent me this refusal notice from John Logue, the senior procurator fiscal for the East of Scotland, who was formerly a member of the Lockerbie prosecution team.  The key passage reads:

We do endeavour to provide information whenever possible. However, in this instance an exemption under section 34(1)(a) of the 2002 Act applies to all the information requested.

The exemption covers information which has been held by a Scottish public authority for the purpose of an investigation into criminal matters whether the public body is the prosecuting authority or has an obligation to make a report to the Procurator Fiscal. In particular, it exempts information which at any time has been used for the purposes of:

• an investigation an authority has a duty to conduct to ascertain whether a person should be prosecuted for an offence;

• an investigation which may lead to a report to the procurator fiscal in connection with possible criminal proceedings; and

• criminal proceedings instituted in consequence of such a report.

Your questions relate to the steps taken by Dumfries and Galloway Constabulary and the Crown Office and Procurator Fiscal Service in relation to four documents during the preparation of the prosecution of Abdelbaset Ali Mohmed Al Megrahi for the Lockerbie bombing and murder of 270 people. Information held in relation to the submission of evidence to the Procurator Fiscal and its consideration for disclosure is information which falls within the terms of section 34(1)(a).

As the exemption is conditional we have applied the ‘public interest test’. This means we have, in all the circumstances of this case, considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. While we recognise that there is some public interest in release because it relates to the Lockerbie bombing which remains a significant event in Scotland and to Mr Megrahi’s conviction, this is outweighed by the public interest in withholding information because of the ongoing criminal investigation into the involvement of others with Mr Megrahi in the bombing and the possibility of further legal proceedings in relation to Mr Megrahi’s conviction.

The ‘possibility of further legal proceedings in relation to Mr Megrahi’s conviction’ is presumably a reference to the current police investigation into the complaints of alleged criminal misconduct made by the committee of Justice for Megrahi. Revealing why the documents were not disclosed, and who made the decisions, could not possibly jeopardise ‘the ongoing criminal investigation into the involvement of others’. It might well, of course, jeopardise the reputations of the Crown Office and its officers.

I am entitled to request an internal review of the refusal, but the likelihood of one of Logue’s colleagues overturning his decision is minimal. Section 47(1) of the act allows a right to appeal internal review decisions to the Scottish Information Commissioner, however, handily for the Crown Office, section 48 exempts it from that provision. In other words, the Crown Office is the final arbiter on whether or not its information should be made public. No other Scottish public authority enjoys this privilege.

The current issue of Private Eye carries the following article on the story (...)  [RB: the article can be read here.]