The Herald today runs an article by political editor Brian Currie under the headline Crown’s actions in Megrahi case face scrutiny. Is it too much to hope that the Crown will be fully held to account for its appalling failures to disclose important evidence to Megrahi’s defence team? And is Holyrood slowly waking up to the scandal?

THE Crown Office’s handling of the prosecution of the man convicted of the Lockerbie bombing is to be raised in the Scottish Parliament.

And the Inspectorate of Prosecution in Scotland has been asked to initiate inquiries into allegations the Crown failed to disclose substantive evidence to Abdelbaset Ali Mohmed al Megrahi’s defence team.

Both moves were instigated by Christine Grahame, an SNP MSP and member of the Justice for Megrahi campaign.

She warned: “While there is a suspicion the Crown Office has not behaved with propriety, this cannot be good for the Scottish justice system.”

Ms Grahame, who is convener of Holyrood’s Justice Committee, said the Scottish Government did not have the power to institute a far-reaching public inquiry – which would require evidence from former prime ministers, the FBI and others.

But it could, under the 2005 Inquiries Act, hold one into matters which were wholly devolved and the Crown Office would be subject to that.

As revealed in The Herald this week, there is material within the Scottish Criminal Cases Review Commission (SCCRC) report into Megrahi’s conviction for the atrocity, in which 270 people died, to suggest he may have suffered a miscarriage of justice on six different grounds.

Ms Grahame said yesterday: “The Scottish Government already has the power to inquire into the activities and the actions of the Crown Office -and the allegations that evidence that should have been disclosed was not disclosed.”

She claimed an inquiry under the existing legislation on devolved powers or by the Inspectorate of Prosecution could go ahead because it appeared there were “no prohibitions” on the Scottish Government.

She added: “Let’s find out if there is any merit in what is being put into the press and into biographies.”

Tory justice spokesman David McLetchie said an appeal by Megrahi would “have the merit of allowing the case to be determined in a Scottish court of law”. But he added if there was no such appeal then there had to be a judicial public inquiry.

Labour justice spokesman Lewis Macdonald said: “What The Herald’s investigation has exposed is that a number of questions remain unanswered. However, it is our view these matters are best settled in Scotland’s court of law – not a public inquiry.”

Patrick Harvie, of the Scottish Green Party, said: “There have long been doubts about Mr Megrahi’s conviction and the best way to establish the truth is to hold a public inquiry.”

A Scottish Government spokesman said Justice Secretary Kenny MacAskill had not seen the SCCRC report as “this would be inappropriate”.

Mr MacAskill has written to UK Justice Secretary Kenneth Clarke asking for an exemption under data protection laws to allow the SCCRC document to be made public. But a spokesman for Mr Clarke said last night that any decision on disclosure was for the SCCRC.

Below is the original text of a long article that appeared yesterday on the Herald’s website a under the headline Lockerbie Revealed: other key findings from ‘secret’ report. It’s a fuller version of the one headed The other prime suspects and doubts over conviction.

During its four-year investigation, as well as finding six grounds why Megrahi may have suffered is miscarriage of justice, the Scottish Criminal Cases Review Commission, examined numerous other issues, which, according to his lawyers, affected the safety of his conviction. The 821-page report contains full details of these investigations and the Commission’s conclusions. It makes fascinating and occasionally surprising reading.

 The Libyan informant

 A key witnesses against Megrahi, was a former Libyan Arab Airlines colleague, Majid Giaka, who was also a junior intelligence officer and CIA informant. At trial the defence were provided with partially redacted CIA cables about him. After two of the Crown team had viewed almost complete cables on 1 June 2000, the Lord Advocate assured the court that the blanked out sections were of no relevance. However, when less redacted versions were eventually released they cast further doubt on Giaka’s credibility. In their application to the SCCRC, Megrahi’s lawyers, who were not those who represented him at trial, argued that the failure to release the full, unredacted cables breached Megrahi’s right to a fair trial.

 Remarkably, the SCCRC was not allowed to view the full cables, but having read the partially redacted ones, it commented:

“it is difficult to understand the Lord Advocate’s assurances to the court on 22 August 2000 that there was “nothing within these documents which relate to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters”. 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 SCCRC nevertheless concluded that the failure to release the full cables had not resulted in a miscarriage of justice.  Twenty-two years on, Giaka’s full story remains unknown.

The terrorist whistleblower

Six months into Megrahi’s trial the Crown disclosed a transcript of a lengthy deathbed confession by Palestinian self-confessed terrorist Mobdi Goben. He  claimed that the bombing was the work of his own group, Popular Front for the Liberation of Palestine – General Command (PFLP-GC), a Syrian and Iranian backed faction who were the original prime suspects in the bombing. The defence interviewed a number of Goben’s relatives and associates who were seeking asylum in Norway, plus a man whom Goben had implicated in the bomb plot. However, the court refused a defence motion to request further information from the Syrian, Iranian, American and Swedish governments, and the allegations were never raised at trial. Megrahi’s SCCRC submission argued that the Crown’s approach to the matter breached his right to a fair trial.

The SCCRC raised the matter with Megrahi’s junior counsel John Beckett, who said that the Goben evidence would have been difficult to use. It also had access to undisclosed Crown documents, which, in its view, contained nothing the defence didn’t already know. It concluded:

“the Commission does not consider that the Crown’s handling of matters concerning the Goben memorandum gave rise to a breach of the Crown’s obligations … Accordingly, the Commission does not consider that a miscarriage of justice may have occurred in this connection.”

Goben’s claims remain unproven, but many who have studied the case, including the British Lockerbie relative Dr Jim Swire, continue to hold the PFLP-GC responsible for Lockerbie.

Prime suspect No.1

Mobdi Goben and PFLP-GC member, bomb-maker Marwan Khreesat, each implicated another of group member, known as Abu Elias, in the bombing. Khreesat was arrested by the German police two months before Lockerbie and admitted building five bombs designed to blow up aircraft. He told the police that Abu Elias had recently arrived in Germany and was an airline security expert, but Elias evaded capture along with at least one of Khreesat’s bombs.

A number of Megrahi’s unsuccessful submissions to the SCCRC referred to Abu Elias. Although the Commission could find no direct evidence of his involvement in the bombing, the report contained the following interesting passage:

“the Commission sought D&G [Dumfries and Galloway police]’s consent to disclose a particular document which contained information relating to Abu Elias. The Commission’s request was referred by D&G to the Security Service which ultimately gave consent to disclose only the following passage:

 “Meeting on 21 February 1990 DST [France’s domestic security service] asked DC Entwistle if he was looking for ‘Abu Elias’ amongst the names of MAY 15 [a terrorist group] transferees to PFLP-GC. DST stated that ‘Abu Elias’ was a central figure in terrorism, that there were numerous people of that name on ‘intelligence networks’ and that they believed that the PA103 bombing must have had some sort of collaboration at Frankfurt.”

The Commission said it found no evidence to support the claim of collaboration at Frankfurt airport. Nevertheless, Abu Elias remains the prime suspect for many of those who doubt Megrahi’s guilt. 

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-Eighties. Previously a prime suspect in the Lockerbie bombing, he had visited Malta two months before Lockerbie, returning with clothes, and some of his associates had visited the German flat in which the PFLP-GC’s Marwan Khreesat 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 SCRC 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 D&G ask the police officers involved in enquiries relative to Abo Talb whether they had established that the position in respect of the return portion of the ticket. D&G confirmed in a letter dated 19 April 2006 that none of the officers could recall making enquiries in this connection … In the Commission’s view, although it is 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 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 shopkeeper

Maltese shopkeeper Tony Gauci was the key witness against Megrahi, as it was he who sold the clothes that were supposedly packed into the bomb suitcase. In 1991 he made a tentative identification of Megrahi, which he repeated at an ID parade 8 years later and again during his trial evidence.  Although four of the SCCRC grounds of referral concerned Gauci, the Commission rejected a number of submissions contained in Megrahi’s original application.  Among these was the claim that Gauci had been taken to Scotland by the police, where he received treats and hospitality, which may have influenced his evidence.

The Commission confirmed that Gauci was taken to Scotland on a number of occasions, but considered that nothing improper had taken place.

“almost all of Mr Gauci’s visits to Scotland took place after he had given evidence. The only exception to this is his visit in 1999 when he attended Dumfries for precognition and was taken sight-seeing in Edinburgh the following day. However, in the Commission’s view any possible significance that might have been attached to this by the defence has to be seen in light of the other information contained in the reports described above. It appears from this that far from viewing his visits to Scotland and elsewhere as an incentive Mr Gauci was strongly opposed to his removal from Malta which he regarded as a source of inconvenience.

Large question marks remain over Gauci’s evidence. The SCCRC discovered that post-trial he received a reward of at least $2 million from the US Department of Justice.

The CIA agent

The only US investigator interviewed by the SCCRC, former CIA agent Robert Baer, reported intelligence indicating that the Iranian government had commissioned the PFLP-GC to bomb Pan Am 103. His sources suggested that two days after the bombing $11 million was transferred into a PFLP-GC Swiss bank account and a few months later $500,000 was paid into an account thought to belong to Abu Talb at the Degussa Bank in Frankfurt.

On the alleged PFLP-GC payment the SCCRC’s report states:

“On 18 December 2006 and 2 May 2007 a member of the Commission’s enquiry team examined a number of protectively marked documents held at Thames House relating to Mr Baer’s claim. Notes were taken of these items which are currently in the possession of the Security Service. The materials show that while initial reports suggested that $11m may have been deposited in a PFLP-GC account on 23 December 1988 it was later revealed that the payment was in fact one of $10m made in June 1987. According to the materials examined by the Commission the source of the payment was not established.

 On the alleged Abu Talb payment it says:

“the Commission saw nothing in the materials viewed by it to suggest that Talb had access to an account numbered 560200 held at the Degussa Bank or any other bank.”

 Overall, the SCCRC concluded:

 “… the Commission has no reason to doubt [Mr Baer’s] credibility. However, as he himself acknowledged, he has no direct knowledge of any of the information in his possession, which came largely from CIA telexes. As with all intelligence, the validity of that information was very much dependent upon the reliability of its source which in many cases Mr Baer was unable to vouch.”

The Baer chapter demonstrates the limited reach of the SCCRC’s inquiry and is probably the report’s most disappointing. 

‘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 the lawyers, MacKechnie & Associates, highlighted anomalies in police documentation, which appeared to support these claims. The Commission spent a long time investigating the allegations, and interviewed the Golfer three times, but found nothing to substantiate the claims. His accounts proved to be erratic and, according to the report, on one occasion he ‘telephoned a member of the enquiry team from a bar, apparently under the influence of alcohol.’ The Commission did not consider the documentary anomalies to be sinister:

“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 enquiry, 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, in themselves, 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 and the failure of his first appeal in 2002.  The allegations are described as ‘wide-ranging and cover failures both to prepare and present the defence and to advance legal argument or assert “legal rights” on behalf of the applicant.’  The legal test to be applied was whether the conduct of the defence had been ‘contrary to the promptings of good reason and sense’.  

In interviews with the SCCRC Megrahi’s fomer 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.”

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 JSO, his use of a false passport, large payments into his Swiss bank account and lies he had told in a US television interview. The Commission conducted lengthy interviews with Megrahi and studied 37 of his precognition statements. 

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 that there was a real risk that 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 that he had nothing to hide from the SCCRC and that the inconsistencies in his accounts are all innocent. While he disputes some of its conclusions he has made clear that he is happy for them to be made public.

The Herald has just published a further article by me about the shortcomings of the SCCRC report.

Report fails to address crucial evidence

THE 821-page SCCRC report is impressively detailed and argued, but important areas of evidence remain untouched and it’s clear the commission missed important facts that strengthen Megrahi’s claims of innocence.

The most notable is the failure to consider evidence from the three airports that, according to the Crown, the Lockerbie bomb passed through: Luqa in Malta, Frankfurt and Heathrow.

The Crown case relied on documents from Frankfurt, which seemed to show that an unaccompanied bag was transferred from an inbound Air Malta flight to Pan Am 103’s Heathrow feeder flight.

Evidence from Malta suggests this was unlikely, and there was also evidence from Heathrow, not available to the trial court, suggesting that the bomb was loaded onto PA103 before the feeder flight arrived.

The FBI played a big role in the investigation, yet the only FBI files to which the commission had access were the ones held by the Crown Office. During its four-year review the commission only interviewed one US investigator, former CIA agent Robert Baer, and failed to conduct any investigations in Germany, home of the Palestinian cell who were the original suspects in the bombing.

The report’s 24 volumes of appendices contain some important information, which the commission failed to comment upon. For example, a police report concerning possible reward payments to star witness Tony Gauci also states that he gave 23 statements and was visited by the police more than 50 times. Only 19 statements were disclosed to Megrahi’s lawyers and the details of most meetings have never been revealed.

The biggest omission concerns the key forensic evidence that convicted Megrahi: a piece of circuit board alleged to be from one of 20 timing devices supplied to Libya. Last month the biography Megrahi: You Are My Jury, revealed that a metallic coating ruled it out as part of one of those timers. A supplementary report noted the discrepancy but said it was not “significant”.

In response to an interview with me about the SCCRC report’s findings, the Crown Office issued a quite remarkable statement to BBC Radio Scotland’s Newsdrive programme. You can listen to the statement here for the next seven days (it appears at around 1:15:50). It goes like this:

The former Libyan regime, according to the new Libyan government, was responsible for the atrocity and Megrahi played a part along with others.

The case against Abdelbaset is now so shot through, that the Crown Office has to fall back on the (largely equivocal) claims of a selection of  Gadafy regime defectors and the former head of a CIA-backed anti-Gadafy faction, none of whom has produce a shred of evidence of the old regime’s involvement, let alone Abdelbaset’s.  I wrote a detailed article on this subject last month.

The Crown Office conveniently ignores the fact that one prominent member of the regime, Mohamed al-Alagi, who now has responsibility for human rights, has publicly stated that Abdelbaset is innocent.

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

The Herald has just published online this analysis piece by me, which expands upon the article published earlier today on the SCCRC’s six grounds of referral.

Its language is sober, often ponderous and sometimes legalistic, but its effect is devastating.

Over the course of 821 pages, the Scottish Criminal Cases Review Commission’s statement of reasons on the case of Abdelbaset al-Megrahi potentially exposes the Scottish criminal justice system – and the Crown Office in particular – to one of the greatest humiliations it has ever faced.

During its four-year investigation the Commission uncovered numerous items of important evidence that cast doubt on Megrahi’s conviction, which the Crown Office had failed to disclose to Megrahi’s lawyers during his trial in 2000-1.

In some cases the Crown Office could explain the failure and in others it claimed to be unaware of the evidence – either way, the failures, while not deliberate, appear to be systematic.

In the SCCRC’s view, the non-disclosure provided four separate grounds for referring Megrahi’s conviction back to the appeal court. They also found two other grounds for referral.

Many observers believe the Libyan’s decision to abandon that appeal, in order to increase his chances of being allowed to return home, averted a major crisis for the Crown Office.

In the two and a half years since then, most of the public debate around the case has focused on the rights and wrongs of Justice Secretary Kenny MacAskill’s decision to grant Britain’s supposed worst mass murderer compassionate release. Publication of the report’s key findings today is bound to turn the spotlight on the Crown Office.

The relatives of the British Lockerbie relatives are angry that successive Scottish governments have refused their calls for a public inquiry into Megrahi’s conviction. The latest revelations could make their case unarguable. 

The case against Megrahi

The Crown case, accepted by the three law lords who tried Megrahi, was that on the morning of 21 December 1988, he smuggled an unaccompanied suitcase containing a bomb onto Air Malta flight KM180 from Malta to Frankfurt,  Germany. 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 small shop in Sliema, Malta called Mary’s House, when he visited the island on 7 December 1988.

British forensic experts had found bomb-damaged clothing fragments, which the police were able to trace to the shop. The shopkeeper, Tony Gauci, recalled selling a collection of similar clothes to a Libyan man in a few weeks before the bombing.

More than two years after the bombing he picked Megrahi from a photo line-up, telling police he resembled the purchaser. In 1999, after Megrahi had surrendered for trial, Gauci again picked him out, this time from a live identity parade.

The other key plank of the case was a tiny fragment of circuit board found within one of the Maltese clothing fragments. Forensic analysis indicated that it was from a timer called an MST-13, which had been designed and built by a small Swiss company called Mebo.

Its boss, Edwin Bollier, said he had supplied 20 of the timers to the Libyan intelligence service, the JSO. The company also rented part of its Zurich office to a Libyan company, ABH, in which Megrahi was a partner.

However, the judges recognised that there were weaknesses in the Crown case. In particular Air Malta’s strict baggage procedures would have made it very difficult to put an unaccompanied suitcase onto the Frankfurt-bound flight.

Tony Gauci’s identification was also problematic. He consistently described the clothes purchaser as around 50 years-old, six feet tall, well built and dark-skinned, whereas Megrahi was 36, five feet eight inches, slightly built and light-skinned.  Gauci also maintained that it was raining as the customer left the shop, but weather showed there was not rain on 7 December, which was Megrahi’s only window of opportunity.

The six grounds of referral by the SCCRC

1. Unreasonable verdict

The trial judges were satisfied that the purchase of the primary suitcase clothing was on 7 December 1988, which was Megrahi’s only window of opportunity. If the clothes were bought on any other date, Megrahi could not have been convicted. Gauci was clear that 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.

Extract (para. 18.204 & 21.96)

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 7 December 1988 and therefore for the inference it drew that the applicant was the purchaser of the items from Mary’s House … Although the weather evidence did not necessarily exclude 7 December as the date of purchase, in any choice between that date and 23 November it strongly favoured the latter.

2. Undisclosed evidence concerning the Gauci identification

Days after Megrahi surrendered for trial in April, the Maltese shopkeeper Tony 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 that Gauci had kept the article for a few months and had only handed it to the police a few days before the ID parade. It also uncovered a police report, which revealed that Gauci had seen other articles containing Megrahi’s photograph a few weeks before the ID parade. The SCCRC concluded that exposure to these images could have prejudiced the identification procedure.

Extract (paras 22.32, 22.64, 22.67 & 22.84)

By letter dated 8 March 2007 Crown Office confirmed to the Commission that this report was not disclosed to the defence. It was explained in the letter that Crown Office has no record of the document in its files but that Mr Brisbane, now Deputy Crown Agent, 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 … whereas the evidence at trial perhaps gives the impression that the magazine was in Mr Gauci’s possession only fleetingly, in terms of Sergeant Busuttil’s statement the period seems to have been of the order of four months. During that time Mr Gauci appears to have kept the magazine at his home where he would have been free to view the contents of the article, including the applicant’s photograph, as and when he wished. Critically, Mr Gauci’s possession of the magazine, and therefore his potential exposure to the applicant’s photograph, came to an end, not months before the identification parade as the evidence at trial perhaps tends to convey, but on 9 April 1999, a matter of only four days … (In) the circumstances it is difficult to avoid the conclusion that Mr Gauci would also have been aware that the applicant was to be present on the identification parade. If that is true, then no matter what attempts were made to select stand-ins of similar appearance there was a substantial risk that the applicant would be instantly recognisable to Mr Gauci, not from any genuine memory of the purchaser, but rather as a result of his exposure to photographs of the applicant in the media and, in particular, to the one he saw only four days previously …the Commission is of the view that Sergeant Busuttil’s police statement and the report of 20 March 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 purchased around a fortnight before Christmas, which was consistent with the time Megrahi was on the island. However, when interviewed by the defence he said he thought the date might be 29 November, although, crucially, he said he didn’t know why. The SCCRC discovered an undisclosed Crown precognition statement in which he repeated the 29 November claim, but added that he believed this might be the date, because he recalled having a row with his girlfriend.

Extract (para 24.78, 24.99 & 24.108):

By letter dated 24 August 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… The Crown’s position throughout its preparation and presentation of the case was that the items were purchased from Mr Gauci on 7 December 1988, a date on which there was evidence that the applicant was not only in Malta but staying at a hotel close to Mary’s House. Indeed, had the court concluded that the purchase had taken place on some other date in November or December 1988 this would effectively have eliminated the applicant as the purchaser since, on the evidence, it was only on 7 December that he would have had the opportunity to buy the items. Viewed in that context, information from Mr Gauci not only that the purchase might have taken place on 29 November 1988 but that he had an argument with his girlfriend that day, is of obvious significance to the defence. While Mr Gauci’s final position in the precognition might cast doubt upon the reliability of that recollection, in the Commission’s view this did not relieve the Crown of its duty to disclose the information contained in the passage … the passage in Mr Gauci’s Crown precognition might have played a useful part in the preparation and presentation of the defence case in that it would have assisted in challenging Mr Gauci’s evidence that the purchase took place about a fortnight before Christmas and in undermining the date of purchase advanced by the Crown. 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 concerning Gauci’s interests 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 that a substantial reward was on offer from the US government and had “expressed an interest in receiving money”.  One of the documents, from June 1999, 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 from the position he and his brother are in relative to the case”.

Extract (para 23.3, 23.19, 23.62 & 23.64):

By letter dated 8 March 2007 Crown Office confirmed to the Commission that Mr Bell’s memorandum of 21 February 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. By letter dated 16 February 2007 Crown Office confirmed that the report by Strathclyde Police dated 10 June 1999 was also not disclosed to the defence. In terms of a further letter dated 27 April 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 at the time or that they were made aware of its contents. As Mr Bell’s memorandum of 14 June 1991 is only significant when seen in the context of his earlier memorandum, in the Commission’s view there would have been no reason to disclose this in isolation …Enquiries 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. Under that programme the US Secretary of State was initially authorised to offer rewards of up to $5m for information leading to the arrest or conviction of persons involved in acts of terrorism against US persons or property worldwide. The upper limit on such payments was increased by legislation passed in the US in 2001 … the Commission is of the view that Mr Bell’s memoranda and the passages from Strathclyde Police report quoted above 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 … In referring the case on this ground the Commission is conscious of the potential impact of its decision upon Mr Gauci who may well have given entirely credible evidence notwithstanding an alleged interest in financial payment. On the other hand there are sound reasons to believe that the information in question would have been used by the defence as a means of challenging his credibility. 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. SCCRC investigators were permitted to view the items and take notes, but those notes were left in the possession of the police. The SCCRC concluded that the non-disclosure of one of the documents indicated that a miscarriage of justice may have occurred. The SCCRC was not allowed to reveal the documents’ contents, which remain unknown.

Extract (paras 25.3 to 25.5 & 25.7 to 25.8)

By letter dated 27 April 2007 Crown Office confirmed that neither of the protectively marked documents was disclosed to the defence. According to Crown Office’s letter, “[the] documents were considered carefully by the Crown for the purposes of disclosure and the conclusion was reached that the documents did not require to be disclosed in terms of the Crown’s obligations.”.It was also pointed out in the letter that “it has never been the Crown’s position in this case that the MST-13 timers were not supplied by the Libyan intelligence services to any other party or that only the Libyan intelligence services were in possession of the timers”. Crown Office also confirmed to the Commission that neither they nor the police had carried out further enquiries or recovered any further information in connection with information contained in one of the protectively marked documents. On 29 March 2007 the Commission sought the consent of Crown Office and D&G to disclose the documents under the minute of agreement. On 27 April 2007 the Commission was informed by Crown Office that such consent could not be given without the permission of the relevant authorities of the country from which the documents originated. Although attempts were made on behalf of Crown Office to obtain the consent of those authorities, as at the date of issue of the Commission’s statement of reasons this had not been given … In any other circumstances the Commission would have explored in detail its reasons for referring the case on this basis. However, in light of the restrictions placed upon its disclosure of the items it is unable to do so. The Commission considered applying to the court for an order under section 194I of the Act requiring Crown Office to produce the documents. However, given the need to finalise the review, and the fact that other grounds of referral had been identified, the decision was taken not to do so.

6. New evidence concerning the date of clothes purchase

In his police statements Tony Gauci was clear that the purchase had taken place around the time the municipal Christmas lights had been put up in the street outside. At the time of the trial no one had been able to establish when this was, but evidence had emerged since then, which demonstrated that it was well before 7 December when Megrahi was in Malta. The key document was a diary belonging to Maltese tourism minister Michael Refalo, which showed that he switched on the lights on 6 December.   

Extract (paras 24.66 & 24.76)

…if the purchase was “about the time when the lights would be going up” then in terms of Dr Refalo’s diary the date is unlikely to have been 7 December 1988 as by that time the lights were illuminated. Given that on the evidence led at trial 7 December 1988 is the only date on which the applicant would have had the opportunity to purchase the items, it follows that Dr Refalo’s account is capable of undermining the court’s conclusion that the applicant was the purchaser … the Commission considers that 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, author of Megrahi: You Are My Jury, and Lucy Adams, the Herald’s chief reporter, will appear at the Aye Write! festival tomorrow (Wednesday, March 14) at 7pm [actually 6pm], to discuss the book. To find out more and book tickets, go to www.ayewrite.com

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.

The Independent on Sunday today carries an article about the timer fragment evidence.

Key evidence that could have acquitted Abdelbaset Ali al-Megrahi of the Lockerbie bombing was not given to his defence team, according to the author of a new book.

Crucial information about a fragment of electrical circuit board that was alleged to have come from the bomb which destroyed a passenger aircraft over the skies of Lockerbie, Scotland, killing 270 people in 1988, was given to police in the run-up to Megrahi’s trial in 2000 but never disclosed, it is claimed.

The allegations are made in the book Megrahi: You Are My Jury, by John Ashton. The book has been condemned by David Cameron, who called it “a disgrace” to the families of the murdered. It claims that a key fragment of circuit board, found at the Lockerbie crash site and said by the prosecution to be from a timer which detonated the bomb, could not have been one of a batch that was sold to Libya by the manufacturers.

The fragment was a vital link in the prosecution argument that the bomb was placed in the aircraft by Megrahi. Last night experts who have closely followed the case said the claim, if true, meant the case against Megrahi is now “blown out of the water”.

During Megrahi’s trial it was accepted the fragment from the timer came from the Swiss company Mebo. The company admitted selling 20 such timers to the Libyans, but new evidence points to the Lockerbie fragment not being one of them. The one at Lockerbie was coated in tin, whereas those sold to Libya were coated with a tin and lead alloy, Mr Ashton says. A sworn affidavit from the production manager said the company only ever used alloy, rather than pure tin.

Megrahi’s trial heard evidence from two prosecution witnesses that the lack of lead on the coating could be explained by it having been burned off in the heat of the explosion. Neither witness was an electronics expert.

However, the book reveals that Megrahi’s solicitor, Tony Kelly, commissioned two scientists, Dr Chris McArdle, a former adviser to the Government, and Dr Jess Cawley, a consultant to the engineering industry, to test the suggestion. Both concluded this could not have happened.

The book also claims that notes by a prosecution forensics expert, Alan Feraday, during his original examination of the circuit board fragment in 1991, reveal he was aware of a difference in the make-up of the circuit board. However, his notes, which were given to police on 8 November 1999, were not disclosed to Megrahi’s defence team until 2009.

“Had these documents been disclosed to the defence team, they would have provided the basis for a vigorous cross-examination of Feraday but, in the event, his claim that the fragment was ‘similar in all respects’ to the control samples went unchallenged,” said Mr Ashton. “I don’t believe the police would have withheld the documents from the Crown, which raises the second question: why was it not disclosed to the defence?

“Whether it was deliberate or not, I don’t know. But it was appalling, and someone should be held to account for it. They did not meet their duty of disclosure. That is a huge scandal.”

The Independent on Sunday sent the relevant pages of the book to Mr Feraday but received no response.

Defence lawyer Gareth Peirce said yesterday: “What the research makes unarguable is that any claimed investigation to date has been determinedly false and has robbed them of a truthful and transparent account.”

Peter Biddulph, a researcher for Jim Swire, who lost his daughter in the tragedy, said the allegations would further victims relatives’ push for a new inquiry. He said: “[These allegations] show the case against Megrahi is totally blown out of the water.”

A Crown Office spokesperson said: “In respect of the timer fragment, the defence experts were satisfied it had suffered damage consistent with it having been closely associated with an explosion and that it had come from an MST-13 timer.”

The following article appears in the latest edition of Private Eye.

David Cameron would have done better to read a detailed new book on the Lockerbie atrocity before dismissing it in a soundbite as an “insult” to the families of the 270 who perished just before Christmas 1988. Families want and deserve the truth.

The book reveals fresh scientific evidence relating to a tiny fragment of electrical circuit board which the prosecution claimed had in effect solved the mass murder. Had there been a second appeal, the new evidence would have shown that not only did Abdelbaset al Megrahi suffer injustice, but also that there was no evidence tying Libya to the atrocity.

The book, Megrahi: You Are My Jury, by John Ashton, a researcher, writer and one of the Libyan’s defence team, also claims that the results of forensic tests carried out by British government scientists on the circuit board cast doubt on prosecution claims but were kept from the trial and defence team. In fact they were not disclosed until a month before Megrahi was freed to return to Libya.

 The tiny fragment of board was said to have been found among remains of a man’s shirt at the crash site. The shirt was traced to Tony Gauci, a Maltese shopkeeper who said more than two years alter the bombing that Megrah resembled a man who bought the clothing. As Eye readers know, Megrahi bore no resemblance to the man originally described by Gauci to investigators.

 The board fragment was said to have been found by Dr Thomas Hayes at Rarde, the Royal Armament Research and Development Establishment, on 12 May 1989. At trial his colleague Allen Feraday said it was “similar in all respects” to circuit boards used in timing devices from a Swiss company Mebo, which had supplied the Libyans with 20 such devices.

But it was never revealed that Feraday had overseen tests on the metallic content of the fragment which found it was different from a control sample of one of the Mebo boards. Had the results been disclosed, not only would Feraday had been called to answer for them, but defence experts could have been called upon to examine the metal mix, including under blast conditions. According to Ashton’s book, Megrahi’s legal team recently did exactly that and two experts, , Chris McArdle and Dr Jess Cawley confirmed the fragment was no match for Mebo and was probably not commercially made.

Eye readers have long been aware of concerns about the discovery of the fragment and its handling. Relevant pages on Dr Hayes’s notes had been renumbered and the shirt’s exhibit label had been altered.

It seems that by the time of Megrahi’s 2001 trial, prosecutors had learned few lessons from scathing criticisms eight years earlier from the May inquiry, which heard in essence that an Irish family had been wrongly convicted of handling IRA explosives largely thanks to the activities – including hidden results and altered notebooks of Rarde scientists.

 This new material, coupled with doubts over Gauci’s identification evidence, destroy the two main pillars of Megrahi’s conviction. It also confirms the fears of observers who sat through the original trial in the Netherlands. One of those was Jim Swire, whose daughter Flora died in the Atrocity. He is convinced that a grave injustice has allowed the real killers to go free and is now at the forefront of demands for a public inquiry.

 Dr Swire told the Eye that it was Cameron’s attempt to dismiss the book without reading it that was the “insult” to families, who are now confronted by what appears to be a deliberate cover-up. The question is, how high does the cover-up go?

I’ve just accepted an invitation to speak at Glasgow’s Aye Write! literary festival on Wednesday 14 March at 6pm in the Mitchell Library theatre. It’s a very late addition to the programme, so doesn’t feature in any of the marketing literature.