I have a new article in The Scottish Review, which can be read here, or below.
The Scottish Government does not doubt the safety of the conviction of Mr Al-Megrahi. Their words, not mine. Their exact words in fact. That, as it happens, is also the position of the lord advocate. You wouldn’t think that Megrahi’s trial court judgement was described as incomprehensible by the UN trial observer and unreasonable by the Scottish Criminal Cases Review Commission (SCCRC), and that numerous informed commentators consider the guilty verdict to be an indelible stain on the reputation of Scotland’s judiciary.
Of course, an SNP government will never easily admit that the country’s foremost independent institution, its criminal justice system, made an almighty hash of Europe’s biggest terrorist case. However, if it continues to stand shoulder to shoulder with the Crown Office, Lockerbie will one day rear up and bite it very hard. Why? Because, as ‘Megrahi: You Are My Jury’ lays bare, the Crown Office failed to disclose to Megrahi’s lawyers, numerous major items of exculpatory evidence. This has the potential to be the biggest scandal of Scotland’s post-devolution era.
The Crown case was that on the morning of 21 December 1988 Megrahi placed a bomb into a suitcase, which he then labelled for onward transfer to New York via Pan Am 103 and smuggled on board a flight from Malta to Frankfurt, where it was transferred onto a Pan Am feeder flight to Heathrow. Crucially, it was alleged that on 7 December he bought the clothes that surrounded the bomb from a small shop in Malta called Mary’s House and that the bomb was activated by a timer, which was one of a batch of 20 that were designed and made to order for the Libyan intelligence service by Swiss company Mebo.
There were two key witnesses. The first was shopkeeper Tony Gauci, who on three occasions picked out Megrahi as resembling the clothes purchaser: the first, three years after the bombing from a photospread; the second, in 1999 from an ID parade; and the third time in court. The second was forensic expert Allen Feraday, who said that a fragment of circuit board found within a blast-damaged Maltese shirt was ‘similar in all respects’ to circuit boards used within the 20 Libyan timers.
In their 80-page opinion, the trial court judges, Lords Sutherland, Coulsfield and Maclean described Gauci as a ‘careful witness’ who:
‘applied his mind carefully to the problem of identification whenever he was shown photographs, and did not just pick someone out at random…From his general demeanour and his approach to the difficult problem of identification, we formed the view that when he picked out the first accused at the identification parade and in court, he was doing so not just because it was comparatively easy to do so but because he genuinely felt that he was correct in picking him out as having a close resemblance to the purchaser’.
What the judges didn’t know, because the Crown failed to disclose it, was that before picking out Megrahi’s photo Gauci had asked the police about being rewarded for his evidence. According to previously secret police reports, he was ‘aware of the US reward monies which have been reported in the press’ and was strongly under the influence of his brother Paul who ‘has a clear desire to gain financial benefit from the position he and his brother are in relative to the case’ and ‘is anxious to establish what advantage he can gain from the Scottish police’.
The Crown also concealed the fact that, for months prior to the ID parade, Gauci had a copy of a magazine article that not only carried a photo of Megrahi, but also detailed inconsistencies between the Crown case and Gauci’s police statements – inconsistencies that his subsequent court testimony went some way towards ironing out.
The judges accepted that Gauci sold the clothes on 7 December 1988, the only date upon which Megrahi could have bought them. What they didn’t know, again because the Crown failed to disclose it, was that, in his pre-trial Crown precognition statement, Gauci said that he thought the date was 29 November, because he recalled rowing with his girlfriend that day. Had that evidence been adduced at trial, the judges would have had no choice but to acquit Megrahi.
After the trial the Dumfries and Galloway police sought massive rewards for the Gauci brothers from the US department of justice. In a letter to the DoJ, dated 19 April 2002, the senior investigating officer wrote: ‘At the meeting on 9 April, I proposed that $2 million should be paid to Anthony Gauci and $1 million to his brother Paul. These figures were based on my understanding that $2 million was the maximum payable to a single individual by the rewards programme. However, following further informal discussions I was encouraged to learn that those responsible for making the final decision retain a large degree of flexibility to increase this figure.’
It has never been denied that the brothers received at least $2 million and $1 million. The letter revealed that, at the request of a US official, the senior investigating officer had consulted with the Crown Office about the reward. He reported: ‘The prosecution in Scotland cannot become involved in such an application. It would therefore be improper for the Crown Office to offer a view on the application, although they fully recognise the importance of the evidence of Tony and Paul Gauci to the case’. In other words, the Crown Office was prevented by its own rules from seeking a reward, but apparently had no intention of preventing the police from doing so.
All this, and more, was uncovered by the Scottish Criminal Cases Review Commission during its four-year review of Megrahi’s case, following which it referred the conviction back to the appeal court on no fewer than six grounds. Small wonder that the Scottish Government, which claims that it wants the commission’s 800-page report to be published, is using legislative ruses to delay publication.
Unfortunately, the commission failed to properly investigate Feraday’s claim about the Lockerbie circuit board fragment. As my book reveals, had it done so, it would have learned that there was forensic evidence that proved the fragment could not have originated from one of the timers supplied to Libya. Tests overseen by Feraday demonstrated that the metallic content of the fragment was different to that of a control sample circuit board of the type used in the Libyan timers. The results were not disclosed to Megrahi’s legal team until a month before his return to Libya. Police labels indicated that they had been handed to the police on 8 November 1999, six months before the opening of Megrahi’s trial.
All these issues would have been aired in the High Court during Megrahi’s second appeal. The Crown Office was no doubt hugely relieved when he abandoned the appeal in order to smooth his application for compassionate release. However, the relief will only be temporary. The scandal will not go away and as the depth of the cover-up is laid bare, sooner or later the government will be forced to distance itself from the Crown Office and abandon the fiction that Megrahi’s conviction is safe.