[With a fresh application lodged, it is worth recalling that it was on this date in 2012 that the Sunday Herald published the Scottish Criminal Cases Review Commission’s 2007 Statement of Reasons for finding that the conviction of Abdelbaset Megrahi might have amounted to a miscarriage of justice. Excerpts from an accompanying article by Lucy Adams were published on this blog. The Sunday Herald summarised the SCCRC report as follows:]
The SCCRC report criticises the former Lord Advocate who led the landmark prosecution. Colin Boyd QC, now Lord Boyd, was head of the team which has been accused of failing to disclose crucial information to Megrahi's defence team.
In its 800-page report, the SCCRC criticises Lord Boyd for his handling of CIA cables about a key witness.
The cables refer to Abdul Majid Giaka, an alleged double agent who was a Crown witness. Giaka identified Megrahi as a member of Libyan intelligence, but his subsequent evidence was rejected following revelations in the US intelligence agency's much-redacted cables that he had demanded and received reward money.
Lord Boyd originally told the trial there was no need for disclosure of the cables. However, the SCCRC said it was "difficult to understand" his assurances from August 22, 2000 that there was "nothing" in the documents relating to Lockerbie or the bombing which could "in any way impinge" on Giaka's credibility.
Lord Boyd rejected the commission's claim. He said: "I reject the suggestion that I or anyone else in the prosecution team failed to disclose material evidence to the defence. All of the relevant CIA cables were disclosed subject to some exceptions, principally to ensure that the lives of named individuals were not put at risk. They were disclosed as a result of a request from the court."
The SCCRC report refers to a number of occasions when it was not granted full access to security documents from the CIA. It was not allowed to disclose certain documents about the case – including one relating to timers found in Senegal which were similar to those thought to have caused the tragedy, and claims by former CIA staff.
The appendices contain a number of references to other CIA cables which have never been fully scrutinised.
The UK Security Services complied with all requests to share information with the SCCRC but said a number of documents could not be disclosed because of national security.
The six different grounds on which the SCCRC said Megrahi could have been a victim of a miscarriage of justice are:
Unreasonable verdict. Due to uncertainty over the date on which Megrahi was supposed to have bought clothes in Malta which were found among the plane debris.
Undisclosed evidence concerning the Gauci identification.
Undisclosed evidence concerning the date of the clothes purchase.
Undisclosed evidence concerning Gauci's interests in financial rewards.
Undisclosed secret intelligence documents –the documents' contents remain unknown.
New evidence concerning the date of clothes purchase.
The report refers to several documents which were not revealed to Megrahi's defence team.
Three of the undisclosed documents related to payments of around $3 million (£1.9m) made by the US Justice Department to Paul and Tony Gauci – key witnesses in the Crown's case.
Tony Gauci claimed Megrahi resembled the man who bought clothes in his Malta shop which were later found to be in the suitcase that contained the bomb which killed 270 people over Lockerbie in December 1988. His identification of Megrahi was critical to the prosecution case.
However, the defence did not know he had discussed and shown an interest in reward money before identifying Megrahi. If they had known, they could have challenged the credibility of the prosecution case. In its report, the SCCRC says: "Such a challenge may well have been justified, and in the commission's view was capable of affecting the course of the evidence and the eventual outcome of the trial."
The commission also found Tony Gauci had a magazine with a photograph of Megrahi stating he was the Lockerbie bomber three days before Gauci identified Megrahi at an identification parade in Holland. We now know that Gauci had it for several months prior to the parade.