The Herald has today published more articles about the SCCRC report, which can be read below. The first is by Lucy Adams and the second by me.
Lockerbie trial QC criticised
The commission investigating whether there was a miscarriage of justice at the Lockerbie trial has criticised 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 the defence working on behalf of Abdelbaset Ali Mohmed al Megrahi, who was convicted of the bombing of Pan Am Flight 103.
In its 821-page report, the Scottish Criminal Cases Review Commission (SCCRC) criticises Lord Boyd for his handling of CIA cables, referring 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. However, the SCCRC said it was “difficult to understand” his assurances on August 22, 2000, that there was “nothing” within the documents relating to Lockerbie or the bombing which could “in any way impinge” on Giaka’s credibility. It added: “The matter is all the more serious given that part of the reason for viewing the cables on 1 June, 2000, was precisely in order to assess whether information behind the redacted sections reflected upon Majid’s credibility.” The Crown subsequently shared some of the redacted cables after demands from the defence.
Lord Boyd last night 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 directed to me.
“I am satisfied that the Crown acted with propriety throughout the trial and endeavoured in this case, as with any other conducted in my name as Lord Advocate, to secure the accused’s right to a fair trial.” He added he was “satisfied” the verdict was proper and correct.
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 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.
Yesterday, The Herald reported that the SCCRC dossier uncovers serious discrepancies in the Crown Office’s reasons for not disclosing vital information. The commission, which reviews cases post-appeal and investigates possible miscarriages of justice, told the Crown it would take legal action if the prosecution did not hand over important documents and speed up information sharing.
Legal experts have now called for a public inquiry into who was responsible for the 1988 atrocity, full disclosure of the SCCRC report and an inquiry into Crown Office practice not to disclose key evidence to the defence during the trial.
Last night Justice Secretary Kenny MacAskill wrote again to his UK Government counterpart, Kenneth Clarke, to ask for an exemption under data protection laws to allow the document to be published.
A Scottish Government spokeswoman said: “With virtually every passing day, more and more of the content of the SCCRC’s Statement of Reasons in the Megrahi case comes into the public domain. Ministers firmly believe this selective reporting of the information only emphasises the importance of the SCCRC being able to decide to disclose information in the Megrahi case.”
A spokesman for the Crown Office said: “This highly selective reporting of the commission’s consideration of the CIA cables and Majid gives a misleading account of this evidence and the role of Lord Boyd.
“In particular, it fails to acknowledge that the commission concluded that there was no miscarriage of justice on this point and it also ignores the trial court’s thanks to Lord Boyd for his efforts to bring this complex and sensitive information before the court.
The other prime suspect and doubts over conviction
During its four-year investigation, as well as finding six grounds why Megrahi may have suffered a miscarriage of justice, the Scottish Criminal Cases Review Commission (SCCRC) examined numerous other issues which, according to his lawyers, affected the safety of his conviction.
Prime suspect No.2
The most unusual Crown witness at Megrahi’s trial was convicted terrorist Mohamed Abu Talb, who was serving a life sentence in Sweden for fatal bombings in Northern Europe in the mid-1980s. Previously a prime suspect in the Lockerbie bombing, he had visited Malta two months before Lockerbie, returning with clothes. Some of his associates had visited the German flat in which Marwan Khreesat, of the Popular Front for the Liberation of Palestine-General Command (PFLP-GC), made barometric bombs. When Megrahi became a suspect the trail to Abu Talb went cold and by calling him as a witness the Crown attempted to demonstrate that he could not have been responsible for Lockerbie.
The SCCRC uncovered no significant new evidence about Abu Talb, but was unable to properly investigate an airline ticket, which suggested that he possibly made a second trip to Malta at around the time that Tony Gauci said he sold the bomb suitcase clothing.
“The commission requested that Dumfries and Galloway Police ask the officers involved in inquiries relative to Abu Talb whether they had established the position in respect of the return portion of the ticket. The force confirmed in a letter dated April 19, 2006, that none of the officers could recall making inquiries in this connection … In the commission’s view, although regrettable that the matter was not checked with Scandinavian Airlines at the time of the police investigation, there was no failure by the Crown to disclose material evidence about the return portion of Abu Talb’s flight ticket.”
There is no smoking gun to implicate Abu Talb, but his trip to Malta and his PFLP-GC connections continue to fuel suspicions of his involvement in Lockerbie.
‘The Golfer’
The Golfer was the cover name of a police officer who told Megrahi’s then legal team that key items of evidence had been manipulated to fit the prosecution case. Subsequent submissions to the SCCRC by former lawyers for Megrahi MacKechnie & Associates highlighted anomalies in police documentation, which appeared to support these claims. The commission investigated the allegations, and interviewed the Golfer three times, but found nothing to substantiate the allegations.
It said: “While some of the allegations made in the submissions were based upon information said to have been provided by the Golfer, others were based purely on perceived irregularities in the recorded chain of evidence.
“The commission’s approach to the latter was that in any police inquiry, let alone one as large scale and complex as the present one, human error is inevitable.
“Although apparent omissions, inconsistencies or mistakes in productions records may, after a long period of time, appear difficult to explain, or even suspicious, in the commission’s view they do not support allegations of impropriety against those involved in the investigation.”
The police will be relieved by the report’s conclusions. That relief won’t be shared by the Crown Office, which the SCCRC has left with some important questions to answer.
The defence lawyers
Megrahi’s application to the SCCRC argued that the approach of his original defence team had contributed to his wrongful conviction. In interviews with the commission, Megrahi’s former solicitor Alastair Duff, leading counsel Bill Taylor, QC, and junior counsel John Beckett all robustly defended their handling of the case.
The report concludes: “In the commission’s view there is nothing in the submissions under this heading, or in the accounts given by the former representatives at interview, which supports the submission that the conduct of the defence was such as to deny the applicant a fair trial. Accordingly the commission does not consider that a miscarriage of justice may have occurred in this connection.”
Overturning Megrahi’s conviction on the grounds of defective representation was always going to be difficult. It remains to be seen whether this will be a ground of appeal if the conviction is ever referred back to the high court.
Megrahi himself
Before referring Megrahi’s conviction to the appeal court, the SCCRC had to be satisfied that, regardless of the weaknesses in the Crown case, there was not overwhelming evidence of his guilt. In practice this meant exploring the issues that would have been raised during cross-examination, if he had opted to give evidence. These included his relationship with the Libyan Intelligence Services (JSO), his use of a false passport, and lies he had told in a US television interview.
The report says: “While at no time did the applicant admit that he was a “member” of [the JSO], in the commission’s view he was so closely associated with it as to amount to the same thing … it is important to bear in mind in any assessment of the applicant’s accounts that each of them was given in English rather than in his native tongue.
“It is obvious … that on occasions the applicant had difficulty expressing himself clearly. Caution is therefore required in analysing his accounts … on the other hand, the applicant speaks English relatively well, having previously studied the subject in Cardiff, and he did not request the assistance of an interpreter at any stage in his interview with the commission. In these circumstances the commission does not consider the inconsistencies in his accounts are merely the result of communication difficulties … in particular, the commission believes there was a real risk the trial court would have viewed his explanations for his movements on 20 and 21 December 1988, and his use of the [false] Abdusamad passport on that occasion, as weak or unconvincing.
It concluded: “The commission has also considered whether, notwithstanding its conclusion that a miscarriage of justice may have occurred, the entirety of the evidence considered by it points irrefutably to the applicant’s guilt. The commission’s conclusion is that it does not.”
Megrahi insists he had nothing to hide from the SCCRC and the inconsistencies in his accounts are innocent. While he disputes some of its conclusions he has made clear he is happy for them to be made public.
John Ashton is the author of Megrahi: You Are My Jury. He will be speaking at Aye Write tonight. See www.ayewrite.com