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.]

Megrahi close to death, says member of defence team

[The following is an excerpt from a report published today on the website of The Courier, a newspaper circulating in the Dundee, Tayside and Fife areas.  It reads in part:]

Lockerbie bomber Abdelbaset al-Megrahi is ''slipping away'' but remains confident that he will be cleared after his ''imminent'' death, a close friend has said.

Fife man George Thomson said Megrahi's family had gathered round his sick bed and were preparing for his passing.

Megrahi, who marked his 60th birthday on Sunday, is being aided by morphine as he attempts to quell the pain of prostate cancer.

The last of his British friends to visit Megrahi in Libya, Mr Thomson said few of the birthday gifts he will have received would mean as much to him as the keepsake he gave to the convict when he visited in December — a tea towel with Scots words on it.

The 66-year-old, who worked on the Libyan's defence team, revealed how Megrahi's heartbroken wife Aisha comforted their Scottish visitor as he almost broke down after seeing his old friend ravaged by cancer.

Mr Thomson, from Burntisland, was hit by the disease around the same time as Megrahi, but has battled back to health.

''When I arrived he (Megrahi) was asleep and mumbling prayers to himself,'' he said.

''I was very upset by how he looked. The last time I'd seen him was when he was still in Greenock Prison. He was playing football and looking healthy.

''His wife saw how shaken I was and she came over and put her arm around me.''

When Megrahi woke up Mr Thomson gave him the jokey tea towel, covered in dialect like 'glaikit', 'crabbit' and 'gallus'.

His face lit up,'' said Mr Thomson, a former police officer who worked as an investigator for two of Megrahi's solicitors.

''He has a great affection for the people of Scotland and he used Scots words like 'scunnered' to sum up his mood and 'dreich' to describe his environment. He liked me to teach him a new word every week.'' [RB: This last was a word that Mr Megrahi used in greeting me on the one occasion that I met him in HMP Greenock.]

Mr Thomson also taught football fan Megrahi about the Old Firm rivalry and convinced the Libyan to become a Rangers fan. (…)

Mr Thomson describes Megrahi as a placid character — but said he is capable of ''fiery'' outbursts due to his frustration at being jailed for a crime he still insists he did not commit.

''I saw him with tears streaming down his face. He would ask why they had blamed him for such an atrocity which involved women, children — innocent people.

''However, he had a sense of humour too and enjoyed special birthday cards we made up for him, with in-jokes about the case.''

Mr Thomson is convinced of Megrahi's innocence and talked of his hopes that the ''truth'' will eventually come out.

''He was always very thoughtful about sending birthday and Christmas cards to others and I got a card from him when my mother passed away,'' he continued.

''It is agonising for me to see an innocent man condemned as a terrorist. I have no doubt he didn't do it."

He added: ''When I saw him he was excited about new evidence casting doubt on claims that a timer fragment allegedly from the bomb came from a batch that was sold to Libya. He felt it was a key breakthrough.

''I only hope there can be a public inquiry into his wrongful conviction.

''As I left, knowing it was the last time I would see him, he gave me a gift of a beautifully-made Arabic waistcoat, which I treasure.''

Further question to Kenny MacAskill

[In the course of his written answer to a recent question from Christine Grahame MSP about the conduct of the Crown Office in the Megrahi case, the Cabinet Secretary for Justice, Kenny MacAskill, said “The Scottish Ministers have a  general power under section 1 of the Inquiries Act 2005 which allows a Minister to hold an inquiry in relation to a case where it appears to him that particular events have caused, or are capable of causing, public concern, or there is public concern that particular events may have occurred.” 

Ms Grahame has now tabled a further question which reads as follows:]

Question S4W-06500: Christine Grahame, Midlothian South, Tweeddale and Lauderdale, Scottish National Party, Date Lodged: 28/03/2012

To ask the Scottish Executive, further to the answer to question S4W-06179 by Kenny MacAskill on 27 March 2012, whether the findings of the Scottish Criminal Cases Review Commission are matters that have caused or are capable of causing public concern within the meaning of section 1 of the Inquiries Act 2005.

Current Status: Expected Answer date 25/04/2012

A full inquiry into conduct of Crown Office is essential

[This is the headline over a letter from Rev Dr John Cameron published in today’s edition of The Herald.  It reads as follows:]


"Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just issues of credibility and reliability, but beyond."


This was the verdict of Richard Keen, Dean of the Faculty of Advocates, on the recent revelations of the Scottish Criminal Cases Review Commission's Lockerbie report.


His bravura performance as Al Amin Khalifa Fhimah's defence counsel was the highlight of the trial and it is still not clear why the Law Lords convicted Abdelbaset Ali Mohmed al Megrahi on such risible witness testimony.


It was, however, disappointing that the commission ignored the "canteen culture" of the forensic evidence and the notorious insecurity of Heathrow's inter-line baggage area.


The Scottish Government should initiate a full inquiry into the conduct of the Crown Office and not hide behind Westminster as it did over the release of the SCCRC report.

First the secrets, now we need answers

[This is the headline over a letter from Dr Jim Swire in today’s edition of the Sunday Herald.  It reads as follows:]

I applaud the Sunday Herald for publishing the Scottish Criminal Cases Review Commission (SCCRC) report into the Lockerbie trial (…)

It is good to know that it was published with the authority of Megrahi himself. The 800 pages are heavy going, but in general they conclude that a miscarriage of justice might have occurred. Without that conclusion any future attempt to challenge the verdict would probably have been in vain. We now know that throughout the Crown Office acted as though it had the right to withhold evidence from the defence at will. This undermines a central tenet of our justice system. Whatever happened to "equality of arms"?

Having finally seen the sections which the Crown had sought to conceal from the court, Richard Keen QC, then for the defence (now Dean of Scotland's faculty of advocates), said of those sections: "Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just issues of credibility and reliability, but beyond."

The SCCRC report covers much of the "credibility and reliability issues" for us, but "beyond" these lies the question of the behaviour of the Crown Office and its investigators. For instance, the SCCRC does not mention the fact that Heathrow airport had been broken into 16 hours before Lockerbie, because that evidence was not examined in the trial court. It couldn't be examined there because although it had been investigated in January 1989, the Crown did not pass a word about it to the defence. Why was that? Well, the current Lord Advocate tells us that he still can't discover why that evidence "went missing".

We the relatives, the judges in the Zeist court and the people of our country need to see these dire aspects investigated. A further appeal would clear Megrahi, I believe, but Scotland needs a full inquiry into the conduct of the Crown Office and their investigators, with new regulations introduced to severely penalise any future failures. Though the Crown Office is a vital part of our legal system they must not be above the law themselves. For all our sakes let's have an inquiry, let's have it now, while the unfortunate Megrahi is still with us.

[Today is Abdelbaset Megrahi’s 60th birthday. A typically mean-spirited article appears in the Daily Express of Monday, 2 April.]

Reopen the Lockerbie case

[This is the headline over an editorial in today’s edition of the Maltese newspaper The Sunday Times.  It reads as follows:]

A report unveiled last Sunday, casting doubt on whether Abdelbaset Al Megrahi was actually the Lockerbie bomb­er, barely made international headlines.

The Western media, especially, long ago decided that Mr Al Megrahi was the man responsible for the death of 270 people when a Pan Am aircraft exploded over the small Scottish village in December 1988.

But the same media (which recently went to town on salacious information about Mr Al Megrahi’s sexcapades in Malta in the 1980s) conveniently ignored a new 820-page report by the Scottish Criminal Cases Review Commission.

Exposing the potential miscarriage of justice, the report cast serious doubt on the credibility of crucial evidence given by a Sliema shopkeeper that led to the Libyan man’s conviction.

Among other crucial issues, the report confirmed that Tony Gauci had been paid by the US State Department for the evidence he provided during the trial when identifying Mr Al Megrahi as ‘the Libyan’ who bought clothes from his shop, allegedly found wrapped around the bomb.

Mr Gauci was also in possession of a magazine containing a photograph of Mr Al Megrahi stating he was the Lockerbie bomber – before he pointed him out at an identification parade in the Netherlands.

Doubts over the Lockerbie verdict have been so pronounced that some of the victims’ families insisted the wrong man was jailed.

Would a bomber conceivably have chosen such a complicated journey for the bomb – placing it in a suitcase that was loaded onto an Air Malta flight to Frankfurt, which was then transferred to Heathrow before being placed on the fatal Pan Am flight 103?

Why was a break-in at Heathrow airport just 16 hours before the explosion concealed from the court?

It would be one of the biggest injustices of modern times if we fail to question the potentially flawed prosecution evidence which led to Mr Al Megrahi’s conviction.

The Maltese government clearly does not want to ruffle feathers with the international community by refusing to petition the Scottish Crown Office to reopen the Lockerbie investigation in light of the recent findings.

It is not enough for the Justice Minister to repeat the government’s mantra in yesterday’s edition of The Times that “the bomb did not leave Malta”.

If that is really the case, then Mr Al Megrahi is not the Lockerbie bomber. The only evidence linking him to the bombing was the evidence of the Maltese shopkeeper who was accused of changing and fudging his evidence to fit better with the prosecution’s case.

Former Air Malta chairman Albert Mizzi and former ground operations manager Wilfred Borg were among those who repeatedly insisted unaccompanied luggage never left Malta.

It is ironic that one of those putting pressure on the Maltese government to call for the reopening of the inquiry is Jim Swire, whose daughter was killed at Lockerbie. What possible motive could he have other than getting to the truth?

The government might argue it has no reason to clear Malta’s or its airline’s name. But 23 years later, this terrorist act still casts a huge shadow.

This mystery will not go away when Mr Al Megrahi dies, which is likely to be fairly soon given his terminal condition, and our government is duty-bound to seek the truth.

There may be question marks over Mr Al Megrahi’s role in the 1980s. There may be question marks over his conduct and the reasons he was travelling to Malta.

But for him to be a terrorist there must be clear evidence that he loaded the bomb in Malta and that the Maltese shopkeeper was telling the truth. That evidence has never been more flimsy and it is intolerable that there is a lack of desire, especially on our part, to get to the bottom of the issue.

Justice Committee report on SCCRC disclosure Bill

The Scottish Parliament Justice Committee’s Stage 1 report on the Criminal Cases (Punishment and Review) (Scotland) Bill was published on 29 March.  The committee’s discussion of Part 2 of the Bill, which deals with publication of SCCRC Statements of Reasons in cases where an appeal has been abandoned, is to be found in paragraphs 123 to 223. As regards the Megrahi case, of course, the Bill’s provisions have been effectively pre-empted by the Sunday Herald’s publication of the SCCRC’s Statement of reasons in his case.

The Stage 1 debate on the Bill is scheduled to take place in the Parliament Chamber on Thursday 19 April at 2.55 pm.


[A report in today’s edition of the Sunday Herald contains the following:]

The Scottish Government was told three months ago that the publication of the highly controversial Lockerbie report was not necessarily held back by data protection legislation.

The revelation brings into question the repeated assurances from ministers that they were doing everything possible to get the report published.

After five years of secrecy the Sunday Herald published the report online last weekend as it believed it was in the public interest, and it had permission from Abdelbaset Ali Mohmed al-Megrahi, the man convicted of the Lockerbie bombing.

Last month, Justice Secretary Kenny MacAskill wrote to his Westminster counterpart asking for an exemption under the Data Protection Act. This followed a similar request in December. MacAskill did not have the report, but was trying to smooth the way for the Scottish Criminal Cases Review Commission (SCCRC) to publish it.

It has now emerged that the Ministry of Justice wrote to MacAskill on December 13 to say there was "no provision for a general exception" under the Act but equally that there was no blanket ban on publication of the report under data protection.

The Information Commissioner's Office (ICO), the regulator of the Data Protection Act in the UK, wrote to The Herald to deny claims that the report was held back by data-protection laws. It also said the ICO had told ministers that publication was not prohibited by the Data Protection Act.

A spokesman for the ICO said: "The ICO has always been clear that it was the restrictive nature of the legislation governing the operation of SCCRC and not the Data Protection Act that resulted in the release of this information, relating to Abdelbaset Ali Mohmed al-Megrahi, being blocked.

"We have consistently advised the Scottish Parliament and Government that the Act would not stand in the way of openness, providing the other legal requirements for disclosure could be satisfied."

Ministers have said since 2009 that they were doing everything in their power to get the full report into the public domain, but said it was still bound by data protection legislation.

[I, of course, have said from the outset that the Scottish Government’s data protection excuse was a complete red herring.]

Lockerbie bomb did not leave Malta, Justice Minister insists

[This is the headline over a report in yesterday's edition of the Maltese newspaper The Times.  It reads in part:]

Malta would continue to stick to its long-held stand that the Lockerbie bomb did not leave from Luqa airport, Justice Minister Chris Said has insisted.

“Since 1988, successive governments have insisted that, according to our records, the bomb did not leave Malta. We are still firm in that conviction,” Dr Said told The Times in view of fresh evidence released by the Scottish authorities.

However, the government does not seem to be interested in petitioning the Scottish auth­orities to re-open the Lockerbie investigation “at least to clear Malta’s name”, as requested by Labour foreign affairs spokesman George Vella.

Dr Said skirted the issue when asked but added: “We cannot ignore that there were two judgements on (Libyan Abdelbaset Ali Mohmed Al Megrahi). The fact that the second appeal was initiated does show that doubts persist on the verdicts. Unfortunately, it was not concluded.”

A report by the Scottish Criminal Cases Review Commission that was made public this week established that Mr Megrahi, the man convicted of the bombing, may have suffered a miscarriage of justice.

It also shed doubt on the credibility of a key Maltese witness, Sliema shopkeeper Tony Gauci, who had identified Mr Megrahi as the man he sold clothes to. Fragments of the clothes were found in the remains of the suitcase that contained the bomb.

The Scottish commission had initiated its investigation that laid the groundwork for a review of Mr Megrahi’s appeal but the matter never went beyond the extensive report because the Libyan national was released from jail – where he was serving life – on compassionate grounds in 2009.

Investigators had argued that an unaccompanied suitcase carrying the bomb and containing clothing bought from Mr Gauci’s shop was placed on board an Air Malta flight to Frankfurt, where it eventually made it to Heath­row before being loaded onto the fatal Pan-Am flight 103.

[A report in Thursday's edition of the same newspaper contains the following:]

As fresh evidence emerges on the Lockerbie bombing that sheds serious doubt on Malta’s link, Labour foreign affairs spokesman George Vella has urged the government to petition the Scottish authorities to reopen the investigation.

“The government should petition the Scottish authorities to reopen the Lockerbie investigation, at least to clear Malta’s name,” Dr Vella said when contacted yesterday, adding the report continued to confirm serious concerns raised over the past years over the guilty verdict.

But according to lawyer Giannella de Marco, who formed part of Mr Megrahi’s defence team at the time, Malta had nothing to clear because it was never accused of helping terrorists.

Investigators had argued that an unaccompanied suitcase carrying the bomb and containing clothing bought from a Sliema shop was placed on board an Air Malta flight to Frankfurt, where it eventually made it to Heathrow before being loaded onto the fatal Pan-Am flight 103. The aircraft exploded over the Scottish town of Lockerbie killing 270 people.

Dr Vella expressed serious concern on the report’s assertion that a key Maltese witness was paid for providing incriminating evidence that led to Mr Megrahi’s conviction. The review commission shed serious doubt on the credibility of Tony Gauci, the Sliema shopkeeper who is supposed to have sold the clothes found in the suitcase to Mr Megrahi.

Mr Gauci, the report said, had also been paid by the US State Department for the important evidence he gave during the trial when identifying Mr Megrahi as “the Libyan” who bought clothes from his shop, Mary’s House, in December 1988.

“It shocks me to know that for money some people will be ready to send someone to jail,” Dr Vella said.

There were big international interests involved, he added, especially if it were true that “evidence was planted and witnesses paid to confirm the story that was created”.

Doubts over Mr Megrahi’s guilty verdict in 2001 have long been cast, especially by British doctor Jim Swire, who lost his daughter in the terrorist attack.

Dr Swire has long believed Mr Megrahi is innocent and that Malta could not have been involved in any way. It is a sentiment shared by Dr de Marco.

She always had a suspicion that Mr Gauci was paid because his version and description of the man who supposedly bought clothes from his shop changed many times.

“By time, the description of the man Gauci sold the clothes to, which initially did not resemble Megrahi, grew to resemble him and I am glad that the Scottish review commission has seen his testimony for what it is,” she said.

Dr de Marco does not agree with those who argued Malta had to clear its name. She insisted there was never any conclusive evidence that the bomb had left from Malta and in no way was the country ever accused of aiding terrorists.

“On the contrary, Malta had helped investigators in all ways possible so the truth could emerge,” she said.

Kenny MacAskill answers Christine Grahame's written question

Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (Scottish National Party): To ask the Scottish Executive , in light of recent allegations that the Crown Office did not act with propriety in the disclosure of evidence to the defence team in the case of Abdelbaset Ali Mohmed Al Megrahi, whether the Scottish Government (a) has the power under the Inquiries Act 2005 to establish an inquiry into the actions of the Crown Office and (b) can refer the matter to the Inspectorate of Prosecution in Scotland.

(S4W-06179)

Mr Kenny MacAskill: The only appropriate forum for determining Abdelbaset Ali Mohmed Al-Megrahi’s guilt is a court of law. The recent selective and partial reporting of the Scottish Criminal Cases Review Commission’s Statement of Reasons in relation to his conviction referred to issues in Mr Al-Megrahi’s second appeal which would have been properly considered by the Appeal Court had Mr Al-Megrahi not withdrawn his appeal.

The Scottish Ministers have a  general power under section 1 of the Inquiries Act 2005 which allows a Minister to hold an inquiry in relation to a case where it appears to him that particular events have caused, or are capable of causing, public concern, or there is public concern that particular events may have occurred.

Under the Criminal Proceedings etc (Reform) (Scotland) Act 2007, the Chief Inspector of Prosecution in Scotland is required to submit to the Lord Advocate a report on any particular matter connected with the operation of the Service which the Lord Advocate refers to the Inspector. The Scottish Government has no power to direct the Inspectorate of Prosecutions to establish an inquiry on any matter.


[The question was tabled on 15 March 2012.  I understand that Ms Grahame intends to ask a supplementary question arising out of the above answer. Scottish lawyers' magazine The Firm has published a typically pithy comment.]

A Scottish show trial has descended into farce

[This is the headline over an article by physicist and former Church of Scotland minister Dr John Cameron in today’s edition of the Scottish Review. It reads in part:]

The Sunday Herald has posted on its website the legal grounds found by the Scottish Criminal Cases Review Commission for Abdelbaset al-Megrahi's second appeal. There was, of course, a clear public interest in making the report available and we have a right to know the nature of the SCCRC reservations and why it reached its conclusions.

It does not answer all the troubling questions which emerged in the wake of the atrocity, the investigation and the trial but it certainly casts doubt on the fairness of the verdict. Within months of the verdict three figures initiated a long protest: Dr Jim Swire (who lost his daughter), Hans Köchler (UN observer at the trial) and Nelson Mandela. Today there is hardly anyone north of the border who is not uneasy and the appeal has the support of the Kirk, the Catholic Church and the law faculties of the Scottish universities. It is also worth noting that not only his fellow prisoners but also the staff at Greenock prison believed he was innocent – usually a sign that something is seriously wrong.

The SCCRC document (a statement of reasons) sets out the grounds for referral back to the appeal court, four of which refer to the non-disclosure of evidence to the defence. This includes the main prosecution witness Tony Gauci having seen a magazine article and photograph linking Megrahi to the crime before making his 'positive' identification. There was also grave concern that Gauci knew the US would reward him with $2 million for 'successful' testimony and severe doubts about the clothing and the purchaser. A fifth reason covered 'secret' intelligence documents not seen by Megrahi's legal team while the sixth referred to new evidence on the date of clothes purchased in Malta.

I was disappointed but not surprised the commission took the forensic evidence at face value and ignored the warning of the distinguished criminal lawyer, Michael Mansfield. As he rightly says: 'Forensic science is not immutable and the biggest mistake that anyone can make is to believe that its practioners are somehow beyond reproach. Some of the worst miscarriages of justice in British legal history have come from cases in which the forensic science was later shown to have been grossly misleading'. There is, in fact, a 'canteen culture' in forensic science which encourages officers to see themselves as part of the prosecuting team rather than investigators seeking the truth.

In recent years no forensic-based case has caused greater concern than the Lockerbie trial and the prosecution has been widely accused of using the tactics of disinformation. The lead prosecutor was the lord advocate, Colin (later Baron) Boyd, who three years before had prosecuted the detective Shirley McKie in another forensic-based disaster. She was later compensated with £750,000 by the Scottish Executive after a botched trial based on faulty forensic evidence (...)

The involvement of the prosecuting team in the earlier fiasco to say nothing of severe doubts about the Lockerbie forensics is surely a matter of concern. The Crown Office said it had 'every confidence in successfully defending the conviction', but as Mandy Rice-Davies said at another trial, 'They would say that, wouldn't they'.

In fact the author of a magisterial study of the Lockerbie evidence, John Ashton, said it is clear the revelations have caused huge embarrassment for the judiciary. The trial was memorable for the performance of Fhimah's counsel, Richard Keen, dean of the Faculty of Advocates and one of the most brilliant legal minds of his generation. When I read his cross-examination of the forensic team of Thomas Hayes and Allen Feraday I thought as a professional physicist that he had shredded their credibility.

Edwin Bollier, who Keen scornfully and repeatedly referred to as 'a legitimate Swiss businessman', gave evidence about the timer which was shown to be pure fantasy. Keen then proceeded to demolish both Tony Gauci and Majid Giaka to such an extent that no-one in the court could be in any doubt that Lamin Fhimah had no case to answer. What I found beyond belief was that evidence which was judged farcical in the case of Fhimah was later accepted as plausible by the law lords in the case of Megrahi.

Having been involved in the appeal for many years, I would say my greatest doubts as a scientist involve the highly dubious theory that the bomb entered the system in Malta. Not only is there no evidence whatsoever an unaccompanied suitcase was secreted onto flight KM180, but Air Malta had won a libel action in 1993 establishing that it was not.

The Maltese police have always protested that this was a most unlikely scenario and the senior airport baggage loader was adamant that he always double-counted his luggage. This reliable official counted his luggage when it was finally gathered and again when it was physically loaded onto the plane and was certain there was no extra case. In fact, the idea of unaccompanied baggage with a bomb rattling around Europe before finding its way onto Pan Am 103 in London has always been widely ridiculed. The excellent screening at Frankfurt would almost certainly have picked it up and the theory added the further complication of requiring a non-barometric timer be used.

The interline baggage hall at Heathrow was notoriously insecure and John Bedford, a loader-driver employed by Pan Am had already told police of suspicious activity. He had placed a number of cases in the baggage container AVE 4041 for the flight but returned from a tea break to find a distinctive brown Samsonite case had been added. Sulkash Kamboj of the Pan Am affiliate Alert Security who told Bedford that he added the case, initially denied this to the police before finally admitting his involvement at the trial.

Whatever happens, it is a matter of the most profound regret that this Scottish show trial in the full glare of the international community has been allowed to descend into farce.

Malta urged to petition for Lockerbie case to be reopened

[This is the headline over a report in today’s edition of the Maltese newspaper The Times.  It reads as follows:]

The Maltese government should petition the Crown Office in Edinburgh to reopen the Lockerbie investigation in light of recent findings that “demolished” the current conviction, according to campaigner Jim Swire.

Dr Swire, who lost his daughter in the 1988 bombing, is sure of the innocence of Abdelbaset Ali Mohmed Al Megrahi, the Libyan man convicted of the crime.

Released on compassionate grounds in 2009, Mr Megrahi is in Libya, suffering from cancer.

“There is a man dying in Tripoli in terrible pain from his prostate cancer who is going to die still accused of being the Lockerbie bomber, when in fact he had nothing to do with it. And that makes me extremely angry. For 23 years, now, I have been trying to find out who murdered my daughter. It was not him,” Dr Swire told The Times yesterday.

An 820-page report by the Scottish Criminal Cases Review Commission released this week lends significant credibility to Dr Swire’s theory.

But Dr Swire insists there is even more compelling evidence relating to a “fabricated” metal fragment which was initially used to trace the bomb to Libya.

Dr Swire says new research has shown the fragment to be made of a different metal to that used by Libyan circuit boards.

He is sure the fragment was manufactured and planted deliberately as evidence to mislead the Scottish courts.

This, together with the fact that a break-in at Heathrow airport was also concealed from the court, shows a deliberate intention to frame Libya for the crime, he claims.

“There is a desperate need to restart an investigation, trial and inquiry into this case which was deliberately misled by the manufacture of a phony piece of circuit board which could not have come from Libya.”

The only other evidence linking Mr Megrahi to the bombing was the evidence of Maltese shopkeeper Tony Gauci, whose testimony Dr Swire describes as “invalid”, primarily because of claims he was paid dearly as a witness.

Dr Swire is calling on the Scottish government to open an inquiry into the way the verdict against Mr Megrahi was reached since he believes the prosecuting Crown Office was aware of the fabrication of the metal fragment.

He quotes from a book written by John Ashton, an author and researcher for Mr Megrahi’s legal team, which makes these allegations about the “bogus” fragment.

“This completely destroys the case against Megrahi and also removes Malta from being the starting point for the Lockerbie bomb.”

“The Maltese government should know who made a fragment that implicated their island and their flag carrier Air Malta when there was no valid evidence that the Lockerbie bomb set off from your island. There is no such evidence,” he said, stressing, however, that those who manufactured the piece of metal had an interest in keeping things quiet.

Meanwhile, the government has not yet said whether it would seek to reopen the case.