The Herald has today published a series of articles, including a front page lead, which reveal the contents of the Scottish Criminal Cases Review Commission’s report into Abdelbaset’s conviction. The articles can be read below. I produced the main analysis piece headlined Six key points that cast doubt on Megrahi’s guilt, although The Herald edited it down a bit. The last article is an editorial. I have added a couple of clarifications in square brackets.
Lockerbie Revealed: The secret report that damns Scottish justice
A DAMNING secret report has revealed the flawed handling of the Lockerbie case by Scottish prosecutors and the key documents not disclosed to the defence team which could have cleared the Libyan convicted of the atrocity.
The full 821-page Scottish Criminal Cases Review Commission (SCCRC) dossier, which has been seen by The Herald, uncovers serious discrepancies in the Crown Office’s reasons for not disclosing vital information.
The Herald can reveal the commission – whose job it is to review cases post-appeal and investigate whether a miscarriage of justice may have occurred – even wrote to the Crown warning it would take legal action if the prosecution did not hand over important documents and speed up information sharing.
The SCCRC rejected many of the defence team’s submissions but upheld six different grounds which could have constituted a miscarriage of justice. The Crown failed to disclose seven key items of evidence that led to the Lockerbie case being referred back for a fresh appeal.
The SCCRC made clear that, had such information been shared with the defence, the result of the trial could have been different. Its full report details why the conviction of Abdelbaset Ali Mohmed al Megrahi was referred for a second appeal.
The Scottish Government says it wants to release the document in the interests of transparency but cannot do so because it is covered by data protection law, which is reserved to Westminster.
The report reveals failings on the part of the Crown and shows it delayed the SCCRC by responding very slowly to requests for documents. In several cases the SCCRC was told items had gone missing or there was no record of them.
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 bought clothes in his Malta shop, which were later found to be in the suitcase that contained the bomb which killed 270 in December 1988. His identification of Megrahi was critical to the prosecution case.
However, the defence did not know he had been offered and paid reward money. If Megrahi’s legal team had been made aware of the payments they would 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.” [JA note: the rewards were not paid until after Abdelbaset’s first appeal in 2002.]
The Crown was unable to adequately explain why a memorandum by Scottish police officer Harry Bell referring to reward money was not disclosed. The Crown claimed a 1998 High Court case, which set a precedent for disclosing important information to a defence, barred disclosure.
This has since been challenged at the UK Supreme Court and even greater disclosure is now required. The commission also found Mr Gauci had a magazine with a photograph of Megrahi stating he was the Lockerbie bomber three days before he identified him at an identification parade in Holland. In 2001 the Scottish court sitting at Camp Zeist in the Netherlands convicted Megrahi of murder. A second accused, Lamin Khalifah Fhimah, was acquitted.
Robert Black, QC, one of the architects of the Camp Zeist trial, said: “I don’t think there could possibly have been a guilty verdict if the Crown had disclosed to the defence all the material they had in their possession and they were obliged to disclose, even as the law on disclosure stood in 2000/01.
“Why didn’t the Crown disclose? Was it because they convinced themselves getting a guilty verdict was more important than obeying ‘technical’ rules – after all, this was a terrorism case? The law about disclosure was clarified after the Zeist trial. But even in 2000/01 the law as it stood would have required the Crown to disclose all the material they withheld. I am delighted The Herald is unveiling this information.”
A Crown Office spokesman said last night: “We note the Commission reported delays in obtaining materials from the Crown but also accepted that the Crown’s responses to requests were often detailed and helpful in this uniquely large and complex case.” He added: “Mr Megrahi was convicted unanimously by three senior judges following trial during which the evidence was rigorously tested and his conviction was upheld unanimously by five judges, in an appeal court presided over by the Lord Justice General.”
Six key points that cast doubt on Megrahi’s guilt
Over the course of 821 pages, the Scottish Criminal Cases Review Commission’s statement on the case of Abdelbaset Ali Mohmed al Megrahi exposes the Scottish criminal justice system – and in particular the Crown Office – to one of the greatest challenges it has ever faced.
During a four-year investigation the commission uncovered numerous items of evidence that cast doubt on Megrahi’s guilt, which the Crown Office had failed to disclose to the Libyan’s lawyers during his trial in 2000-1. The SCCRC said the non-disclosure provided four of six separate grounds for referring the conviction back to the appeal court.
Most of the debate around the case has focused on Justice Secretary Kenny MacAskill’s decision to grant Megrahi’s release. Publication by The Herald of extracts from the report will turn the spotlight on the Crown Office.
Relatives of the UK Lockerbie victims want a public inquiry into Megrahi’s conviction. These revelations could make the case unarguable.
The case against Megrahi
The Crown case was that on the morning of December 21, 1988, he smuggled an unaccompanied suitcase containing a bomb on to a flight from Malta to Frankfurt. There the case was transferred to a Pan Am feeder flight to Heathrow, where it was loaded on to Pan Am flight 103. The suitcase contained clothes, which he was alleged to have bought from a shop in Malta called Mary’s House, when he visited the island on December 7, 1988.
The shopkeeper, Tony Gauci, recalled selling a collection of similar clothes to a Libyan man a few weeks before the bombing.
More than two years later he picked Megrahi from a photo-lineup, telling police he resembled the purchaser. In 1999, after Megrahi had surrendered for trial, Gauci again picked him out, from a live identity parade.
The six grounds of referral:
1. Unreasonable verdict
The trial judges were satisfied the purchase of the clothing in the suitcase containing the bomb was on December 7, 1988, Megrahi’s only window of opportunity.
Gauci was clear it was raining as the man was leaving the shop, yet the court heard from Malta’s chief meteorologist that no rainfall was recorded that day.
In the SCCRC’s view this rendered the judgment unreasonable: “The Commission has reached the view that the trial court’s verdict is at least arguably one which no reasonable court, properly directed, could have returned.
“In particular the Commission does not consider there to be any reasonable basis for the trial court’s conclusion that the purchase took place on December 7, 1988, and therefore for the inference it drew that the applicant was the purchaser of the items from Mary’s House.”
2. Undisclosed evidence about the Gauci identification
Days after Megrahi surrendered for trial, Gauci picked him out at an identity parade. One of Gauci’s neighbours had earlier shown him a magazine article, which contained a photograph of Megrahi under the heading: Who planted the bomb?
The SCCRC discovered a statement by Maltese officer Sergeant Mario Busuttil, which showed Gauci had only handed it to the police days before the ID parade. It also uncovered a police report which revealed Gauci had seen other articles with Megrahi’s photograph a few weeks before the parade.
The report states: “Crown Office confirmed to the Commission that this report was not disclosed to the defence … Crown Office has no record of the document in its files but … Jim Brisbane was confident that as a member of the joint police and prosecution investigation team in Malta in early 1999 he would have been made aware of the information it contained… the Commission is of the view that Sergeant Busuttil’s police statement and the report of March 20, 1999, should have been disclosed to the defence. Both items were likely to have been of material assistance in the proper preparation or presentation of the applicant’s defence and to have been of real importance in undermining of the Crown case.”
3. Undisclosed evidence concerning the date of the clothes purchase
At trial Gauci said the clothes were bought about a fortnight before Christmas, around the time Megrahi was on the island. When interviewed by the defence he said he thought the date might be November 29. The SCCRC discovered an undisclosed Crown precognition statement in which he repeated the November 29 claim, but added that he believed this might be the date. [JA note: Gauci said the date stuck in his mind because he believed he had had a row with his girlfriend.]
The report states: “By letter dated August 24, 2006, Crown Office confirmed to the Commission that the contents of Mr Gauci’s Crown precognition were not disclosed to the defence. According to the letter this was consistent with the Crown’s practice at the time – In the Commission’s view by withholding this information the Crown deprived the defence of the opportunity to take such steps as it might have deemed necessary.”
4. Undisclosed evidence about Gauci’s interest in rewards
The SCCRC discovered three police documents that indicated that, before first picking out Megrahi from a photo line-up in 1991, Gauci was aware a substantial reward was on offer from the US Government and had “expressed an interest in receiving money”.
A June 1999 document described him as being “somewhat frustrated that he will not be compensated in any financial way for his contribution to the case” and said his influential brother Paul “has a clear desire to gain financial benefit”.
The report states: “Crown Office confirmed to the Commission that [Detective Chief Inspector Harry] Bell’s memorandum of February 21, 1991, was not disclosed to the defence. According to the letter, Crown Office has no record of this document in its files and no one there who dealt with this part of the case has any recollection of having seen it before. Crown Office confirmed that the report by Strathclyde Police dated June 10, 1999, was also not disclosed to the defence … in a further letter, dated April 27, 2007, Crown Office explained that although a copy of the report could not be found in its files, given its nature the possibility could not be excluded that a copy was made available to them …
“Inquiries with D&G [Dumfries and Galloway Police] have established that, some time after the conclusion of the applicant’s appeal against conviction, Anthony and Paul Gauci were each paid sums of money under the Rewards for Justice programme administered by the US Department of State- the Commission is of the view that Mr Bell’s memoranda and the passages from Strathclyde Police report … ought to have been disclosed to the defence. Taken together, all three items were likely to have been of material assistance to the proper preparation or presentation of the applicant’s defence and were likely to have been of real importance in undermining the Crown case. 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.”
5. Undisclosed secret intelligence documents
In 2006 the Crown informed the SCCRC of two classified documents in its possession. Commission investigators were permitted to view the items at Dumfries police station and take notes, but the notes were left with police. The SCCRC said non-disclosure of one of the documents indicated a miscarriage of justice may have occurred. It did not have permission to reveal the contents of the documents or take them from the police station. Megrahi and his legal team have still not seen this document or been told what it contains.
The report states: “By letter dated April 27, 2007, Crown Office confirmed that neither of the protectively marked documents was disclosed to the defence. According to Crown Office’s letter, ‘the conclusion was reached the documents did not require to be disclosed in terms of the Crown’s obligations’.”
6. New evidence concerning the date of clothes purchase
In his police statements, Tony Gauci was clear the purchase was made around the time the municipal Christmas lights had been put up. Evidence emerged since the trial that calls into question Gauci’s account. The key document was the diary of Malta tourism minister Michael Refalo which showed he switched on the lights on December 6.
The report states: “The Commission considers Dr Refalo’s account is capable of being considered as credible and reliable by a reasonable court, and is likely to have had a material part to play in the determination by such a court of a critical issue at trial, namely the date on which the items were purchased from Mary’s House.”
John Ashton is the author of Megrahi You Are My Jury, Megrahi’s official biography.
Main players : The people who were key to the story
Abdelbaset Ali Mohmed al Megrahi: The Libyan who was convicted of the bombing.
- Colin Boyd: The former Lord Advocate who presided over the trial proceedings.
- Jim Brisbane: The senior prosecutor involved in the trial and referred to in the SCCRC report.
- Detective Chief Inspector Harry Bell: Scottish police officer who led the investigation in Malta.
- John Ashton: Author of Megrahi’s official biography and former member of the defence team. [JA note: It’s flattering to be called a key player, although it’s not how I’d describe myself.]
- Abu Talb (above right) and Abu Elias: Key players in the Popular Front for the Liberation of Palestine – General Command. They were originally suspects in the case when investigators thought that the attack was Iranian-funded.
- Tony Gauci (right): The Crown’s key witness in the case. With his brother Paul, he ran Mary’s House shop in Malta. He identified Megrahi as the buyer of clothes found in the suitcase which contained the bomb.
- Sergeant Mario Busuttil: Maltese police officer whose report about Tony Gauci identifying Megrahi from a magazine article about the bomber was not shared with the defence.
- Abdul Majid Giaka (right): An alleged double agent who defected from the Libyan intelligence service to become a CIA asset. He was a Crown witness at the trial but was considered unreliable as it was revealed he had asked for financial remuneration. He identified Megrahi as a member of the Libyan intelligence service but all his other evidence was rejected.
Why the full report is still not published
WHEN the Scottish Criminal Cases Review Commission (SCCRC) referred the Lockerbie case back for a fresh appeal in June 2007 they were only able to publish a summary of their findings.
At that stage if they had published the full report they could have been prosecuted. Legally their hands were tied. In an effort to get the report published, the Scottish Government passed a statutory instrument, which meant it would no longer be a criminal act for the SCCRC to publish such reports.
However, the 821-page document was still bound by Freedom of Information and Data Protection legislation. The commission wrote to the individuals mentioned in the report asking for their consent for publication. Consent was not given. Abdelbaset Ali Mohmed al Megrahi said he would agree if the Crown did. Ultimately, however, the Crown did not.
To try to get the report into the public domain, ministers brought forward legislation to ease publication. This should be enacted in May but because of the status of the SCCRC, they are still bound by Data Protection legislation. Justice Secretary Kenny MacAskill has written to UK Justice Secretary Ken Clarke to ask for an exemption under Data Protection.
The Herald is the first newspaper to have had access to the report. Five years on it is finally closer to being aired.
Lockerbie: inching closer to the truth
Today The Herald exclusively publishes details of the report of the Scottish Criminal Cases Review Commission (SCCRC) showing why the conviction of Abdelbaset Ali Mohmed al Megrahi for the Lockerbie bombing was referred for a second appeal.
Data protection restrictions have prevented both the Scottish Government and the commission itself from releasing the report, although the Scottish Government, which has said it wants publication in the interests of transparency, is seeking permission to publish from the UK Justice Secretary. However, with the release last month of Megrahi’s authorised biography, some of the material which led the SCCRC to conclude the conviction was potentially unsafe began to seep into the public domain.
This newspaper has taken a close interest in the case over many years and has revealed a number of significant developments, including the facts that Megrahi intended to drop the appeal and that the Crown failed to disclose a number of documents to the defence. In consequence, we have consistently called for publication of the SCCRC report and for a public inquiry into the case. Having seen the report, we are now further convinced that publication and investigation are necessary if justice is to be served and the Scottish legal system is to retain public confidence.
It must be of serious concern that the Crown not only failed to share significant information with the defence leading up to the trial in 2000 at Camp Zeist in The Netherlands but also subsequently delayed providing the SCCRC with documents and then said it did not hold certain records.
The SCCRC report reveals that Strathclyde police officers found the brother of the Crown’s key witness, the Maltese shopkeeper Anthony Gauci, anxious to gain financial advantage from their position as potential witnesses. The case hinged on Anthony Gauci identifying Megrahi as having bought clothes in his shop that were found in the suitcase containing the bomb.
There must be doubt over the quality of evidence given in return for a reward and the absence of any documentation relating to payments known to have been made deepens suspicion. This is reinforced by the additional failure to disclose that Mr Gauci had identified Megrahi from a photograph in a magazine article about the Lockerbie bombing.
It must be remembered that at the time the Crown was not required to disclose these documents (none was). However, the withholding of information from the defence has since been successfully challenged in the Supreme Court and it is clearly in the interests of all that the case should be re-examined with the benefit of all the available evidence. That remains difficult in relation to two further intelligence documents (one involving the bomb timer) because the commission cannot disclose their contents without permission from their country of origin. Even without them, it seems that if the material gathered by the SCCRC had been disclosed it is unlikely that Megrahi would have been convicted.
Such is the level of doubt over this case that it must be a matter of regret that Megrahi decided to drop his appeal although there was no requirement on him to do so because he was released on compassionate grounds and not under the prisoner transfer agreement. It is increasingly difficult to argue the report should be withheld to comply with data protection law and the Scottish Government should push for permission to publish in the interest of shedding light on a conviction that, far from closing the case on Britain’s worst terrorist atrocity, has, with the passage of time and the growing volume of revelations, raised questions about the integrity of Scottish justice.
Taking account of our disclosures today and tomorrow, the case for a public inquiry has become even more compelling.