Megrahi: You are my Jury

The following brief article appears in the current issue of Private Eye. My comments follow.

Disappointment among the relatives of those who died in the Lockerbie atrocity: Ed Miliband is not blocking their call for a public inquiry following the release “on compassionate grounds” of Abdelbaset Al-Megrahi in 2009.

The Labour leader has written to Pan Dix, whose brother was one of the 270 who died when Pan Am flight 103 was blown out of the skies in December 1988, saying that while criminal investigations continue “nothing should be done to undermine them”.

Miliband must be aware that the Levenson inquiry is doing an extraordinary job unearthing material that may aid a now very active criminal investigation, where hacks, police and a member of the armed forces have all been arrested. But how “active” is the Lockerbie investigation?

The Scottish Crown Office told the Eye that six legal staff “have been involved and continue to be involved”. But when asked whether anyone who had spoken to the two forensic experts who have cast doubt on the scientific evidence used to incriminate Megrahi, a spokeswoman said: “As the investigation remains live, it would not be appropriate to offer further comment.” In other words, er, no.

Miliband appears to be adopting the same position towards the UK’s biggest terrorist mass murder as the rest of the political establishment.

The fact that the Lockerbie investigation remains open was, of course, recently underlined by the Lord Advocate Frank Mulholland’s visit to Tripoli with FBI director Robert Mueller.   Back in December, Mulholland said: “I think I would be failing in my duty if I didn’t properly seek to take advantage of the opportunity that has opened up with the fall of Gaddafi.” However, it seems that he does not regard it as a failure of duty to ignore the two scientists (Dr Jess Cawley and Dr Chris McArdle), whose work demonstrates that the circuit board fragment, PT/35b, could not have been from one of the 20 timers supplied to Libya by the Swiss firm Mebo. This new evidence destroys the case against Abdelbaset al-Megrahi, yet the Crown is acting like nothing has happened.

The Firm magazine has today published the following article under the headline Crown Office “communications” unit under fire over “misleading” Megrahi statements

The author of the book “Megrahi: You are my jury” which disclosed major revelations in the ongoing Pan Am 103 debacle has lodged a formal complaint to David Harvie, Director of the Serious Casework Division at the Crown Office over a “misleading statement” issued by functionaries in the communications department.

The complaint by John Ashton alleges that a misleading statement was issued on 25 March in response to newspaper coverage of the book’s revelations, which led to the publication of the Scottish Criminal Cases Review Commission’s report concluding that a miscarriage of justice may have occured.

Ashton adds that the communications unit failed to correct the statement.
The statement in question said: “…allegations of serious misconduct have been made in the media against a number of individuals for which the commission found no evidence. This is also to be deplored. In fact the commission found no basis for concluding that evidence in the case was fabricated by the police, the Crown, forensic scientists or any other representatives of official bodies or government agencies …”
Ashton said in his letter to Harvie: “This gave the impression that ‘Megrahi: You are my jury’ and the previous reports in the Herald and Sunday Herald made unsubstantiated allegations against certain individuals and failed to report that the commission found no evidence that evidence was fabricated. In fact they did no such thing and were careful to report the commission’s findings on these matters.”

Ashton states that he subsequently asked the Crown Office’s communications department to correct its statement, “making clear that neither the book, nor the Herald articles, made the claims apparently attributed to them.”

The response from the Crown Office said that it did not consider that any correction was required.

“The Crown Office’s failure to correct the statement means that a distorted and misleading picture remains before the public,” Ashton says in his letter to Harvie.

Earlier this month David Harvie was appointed to lead a new prosecution “networks” covering the North of Scotland.

The Crown Office have maintained a boycott of The Firm magazine since 2010.

The Scottish Review has today published the following article by me, under the headline Secrets of a memo: the Crown and the CIA. It is based on a previously confidential memo concerning the inspection by two of the prosecution tea of CIA cables relating to Crown witness Majid Giaka. The document can be downloaded here.

Welcoming the release of the Scottish Criminal Cases Review Commission’s report on the conviction of Abdelbaset al-Megrahi on 25 March, Alex Salmond managed to add to the roll call of excuses for not ordering a public inquiry into the case.     

The report, he said, ‘in many ways is far more comprehensive than any inquiry could ever hope to be’. In fact, it’s not: the SCCRC’s job was to establish whether Megrahi may have been wrongly convicted, not to examine why the case went so badly wrong, although it undoubtedly shed some light on that matter.

If a single document illustrates why we still need an inquiry, it is a confidential memo dated 2 June 2000 by the lead procurator fiscal on the case, Norman McFadyen. Published here for the first time, it reports on a meeting that McFadyen and advocate depute Alan Turnbull QC had had the previous day at the US embassy in The Hague. Large sections of it remain redacted.

The two prosecutors were there to inspect CIA cables relating to one of the Crown’s star witnesses, an ex-colleague of Megrahi’s called Majid Giaka, who was a member of the Libyan external intelligence service, the ESO. Giaka, it transpired, was also a CIA informant. Crucially, he claimed that, shortly before the bombing, Megrahi had arrived in Malta with a brown Samsonite suitcase and that his co-accused Lamin Fhimah had helped him carry it through airport customs. If true, this was highly significant, because the Lockerbie bomb was also contained within a brown Samsonite and, according to the Crown, began its journey in Malta.

Twenty-five heavily redacted cables had been disclosed to the defence. The purpose of the meeting, according to the memo, was to view almost entirely unredacted versions in order to determine ‘whether there was any material which required to be disclosed to the defence’. Page two states that, at the CIA’s insistence, the two men had to sign a confidentiality agreement, the terms of which McFadyen described as follows: ‘If we found material which we wished to use in evidence we would require to raise that issue with the CIA and not make any use of the material without their agreement’. In effect, then, the Crown had secretly ceded to the CIA the right to determine what material might be used in court. But it’s what followed a few paragraphs later that’s key. MacFadyen reported that, having inspected the cables:
     ‘We were able to satisfy ourselves that there was nothing omitted which could assist the defence in itself. There were some references to matters which in isolation might be thought to assist the defence – eg details of payments or of efforts by Majid to secure sham surgery – but since evidence was being provided as to the total of payments made and of the request for sham surgery, the particular material did not appear to be disclosable. We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence.’     

MacFadyen was correct in stating that evidence had been disclosed of the total payments to Giaka and a request for sham surgery in order to enable him to resign from the ESO. The payments were detailed in two separate CIA documents (not cables) while his desire for sham surgery request was referred to in one of the disclosed cables.
When, almost three months later, the defence counsel learned of the Hague embassy meeting, they urged the court to ask the Crown to obtain the complete cables from the CIA. In response, the lord advocate, Colin Boyd QC, assured the court that MacFadyen’s and Turnbull’s review had established that ‘there was nothing within the cables which bore on the defence case, either by undermining the Crown case or by advancing a positive case which was being made or may be made, having regard to the special [defence of incrimination]’. He added: ‘there is nothing within these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid [Giaka] on these matters’.The court nevertheless urged the Crown to seek fuller versions of the cables from the CIA. Three days later the Crown handed the defence copies with far fewer redactions. What, then, was contained in the previously concealed sections, which, in MacFadyen’s view, was ‘not relevant to the case or helpful to the defence’? Here’s what.

There were repeated references not only to Giaka’s desire for sham surgery, but also his repeated and successful pleas to the CIA to pay for it. One of the cables described him as ‘something of a hypochondriac’, while another noted his claim to be a distant relative of Libya’s former leader King Idris. A further one revealed that he wanted the CIA to set him up in a car rental business in Malta and that he had saved $30,000 towards the venture. His handlers believed that much of the money had been acquired from illegal commissions and perhaps through low-level smuggling.

Crucially, there were references to other meetings with the CIA, for which no cables had disclosed. Eventually the CIA coughed up 36 more, about which MacFadyen and Turnbull were seemingly unaware.

The most telling fact concealed by the redactions was that the CIA had grown increasingly dissatisfied with Giaka. One noted that his information about the ESO’s structure and administration ‘may be somewhat skewed by his prolonged absence and lack of seniority’. Another revealed that he would be told: ‘that he will only continue his $1,000 per month salary payment through the remainder of 1989. If [he] is not able to demonstrate sustained and defined access to information of intelligence value by January 1990, [the CIA] will cease all salary and financial support until such access can be proven again’. A later section of the same cable noted: ‘it is clear that [Giaka] will never be the penetration of the ESO that we had anticipated… [He] has never been a true staff member of the ESO and as he stated at this meeting, he was coopted with working with the ESO and he now wants nothing to do with them or their activities… We will want to ensure that [he] understands what is expected of him and what he can expect from us in return. [CIA] officer will therefore advise [him] at 4 Sept meeting that he is on “trial” status until 1 January 1990’.

Having analysed the unredacted sections, Richard Keen QC, respresenting Megrahi’s co-accused, Lamin Fhimah, told the court it was ‘abundantly clear’ that much of the newly uncovered information was highly relevant to the defence, adding, ‘I frankly find it inconceivable that it could have been thought otherwise… Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond’. In order words, the Crown had been caught out misleading the court. I do not suggest that Boyd did so deliberately, neither that MacFadyen and Turnbull deliberately concealed evidence that they knew would by helpful to the defence. Motive is not the issue: what really matters is the quality of the Crown’s judgement.

Armed with the new information and the 36 additional cables, Keen and Megrahi’s counsel, Bill Taylor QC, were able to demolish Giaka’s credibility and with it the case against Fhimah, who was acquitted. Had the court taken Boyd at his word and the redactions not been lifted, Giaka might have left the witness stand with his credibility intact and Fhimah may well have been convicted along with Megrahi.

The big remaining question raised by the MacFadyen memo is: was it an isolated failure of judgement or the tip of the iceberg? The SCCRC found numerous items of significant evidence, which the Crown had failed to disclose to Megrahi’s lawyers. Did the prosecutors also satisfy themselves in each instance ‘that there was nothing omitted which could assist the defence’? Only a full public inquiry can adequately answer such questions. It is high time that Salmond’s government ordered one.

Below is the text of an email that I have sent to the Crown Office concerning the statement it issued in response to the publication of the SCCRC report.

Dear Sir or Madam,

I am the author of the book ‘Megrahi: You are my jury’ and also wrote some of the recent articles in the Herald about the SCCRC report on Mr Megrahi’s conviction.

In a statement issued yesterday, in response to the release of the SCCRC report, the Crown Office stated:

allegations of serious misconduct have been made in the media against a number of individuals for which the commission found no evidence. This is also to be deplored.  In fact the commission found no basis for concluding that evidence in the case was fabricated by the police, the Crown, forensic scientists or any other representatives of official bodies or government agencies …

This gives the impression that Megrahi: You are my jury and the previous reports in the Herald made unsubstantiated allegations against certain individuals and failed to report that the commission found no evidence that evidence was fabricated. In fact they did no such thing and were careful to report the commission’s findings on these matters. The allegations of evidence fabrication rest largely upon the claims of the witness known as ‘the Golfer’. You should note that the book states at p.291:

[The Golfer’s] accounts were erratic, often inconsistent and sometimes contradictory, and on one occasion he called the Commission from a bar when clearly drunk.

And at p.306:

The Commission barely disguised its irritation at the other written submissions. It had had clearly spent a great deal of time investigating each one in detail, only to dismiss them all. It also wholly rejected the Golfer’s allegations that the police had covered up and fabricated evidence. Having interviewed him three times, it found ‘a vast array of inconsistencies’ within his various accounts, which gave rise to ‘serious misgivings’ as to his credibility and reliability.

Furthermore, in an article for the Herald published on 14 March, I wrote:

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.”

Given the above, the Crown Office should issue a correction to its statement, making clear that neither the book, nor the Herald articles made the claims apparently attributed to them. If the Crown Office fails to do so, I shall make a formal complaint.

Yours sincerely,

John Ashton.  

I have received the following letter of apology from the head of BBC Scotland, Ken MacQuarrie, in relation to its scoop about Abdelbaset’s personal life, which was based on unauthorised use of the SCCRC report.

Dear Mr Ashton

 Thank you for your email of 6 March. I have now had the opportunity to consult with the various parties involved, within the BBC, and subsequently to consider their input in respect of the points which you raise in your complaint.

I apologise for the breach in the spirit of our agreement with you, concerning further publication of information contained within the Scottish Criminal Cases Review Commission (SCCRC) Statement of Reasons. I recognise that this document was passed to BBC Scotland in order to allow the contents of the documentary ‘Lockerbie: the Lost Evidence’, broadcast on BBC One Scotland on Monday 29 [sic] February 2012, to be fact-checked and complied.

I am happy to assure you that, in the short term, we will not publish further details from that report unless circumstances around the story change and we believe there is strong public interest in doing so.

I understand that it is your opinion, as it is ours, that the SCCRC report should be published in full. I hope that, in the light of this letter, you will agree to meet with our production team to discuss matters further and to allow an opportunity for discussion on any issues that you may feel that we should address.

Thank you for contacting me on this matter. Should you wish further to escalate your complaint, you may do so by contacting the BBC Trust. The Trust can be contacted at: BBC Trust, 180 Great Portland Street, London W1W SQZ or you can e-mail them at: trust.enguiries@bbc.co.uk Details of the BBC complaints processes can be found at www.bbc.co.uk/complaints

Yours sincerely

Ken MacQuarrie.

Below is the Crown Office full statement in response to the publication of the SCCRC report. As I anticipated, they have cherry picked the parts of the report that are unfavourable to Abdelbaset. My responses to these are in normal typeface.

The Crown notes the publication today by the Sunday Herald of the Statement of Reasons of the Scottish Criminal Cases Review Commission in the case against Megrahi.

The Commission was working to facilitate the publication with appropriate protection for all of the persons named in it taking account of their human rights [articles 2 and 8] and issues of confidentiality. The unauthorised publication by the Sunday Herald today does not deal with any of these issues which rightly constrain all public authorities by law.

We have become very concerned at the drip feeding of selective leaks and partial reporting from parts of the Statement of Reasons over the last few weeks in an attempt to sensationalise aspects of the contents out of context.

Persons referred to in the Statement of Reasons have been asked to respond to these reports without having access to the statement of reasons and this is to be deplored. Further allegations of serious misconduct have been made in the media against a number of individuals for which the Commission found no evidence. This is also to be deplored. In fact the Commission found no basis for concluding that evidence in the case was fabricated by the police, the Crown, forensic scientists or any other representatives of official bodies or government agencies.

Other matters of significance are:

1.      The SCCRC found nothing to undermine the trial court’s conclusions about the timer fragment, namely that it was part of a timer manufactured by a Swiss company, MEBO, to the order of the Libyan intelligence services.

The SCCRC missed the fact that the timer fragment could not have been from one of the timers sold by Mebo to Libya. (For further  details click here.)

2.      The SCCRC report confirms that Tony Gauci was paid a reward by US authorities only after the first appeal.

The report confirms: 1) that Gauci expressed an interest in being rewarded before his original tentative identification of Abdelbaset; 2) that he was under the influence of his brother Paul who repeatedly raised the issue of rewards with the police; 3) that Tony and Paul were respectively paid at least $2 million and $1 million.  The fact that they were not paid until after the first appeal is irrelevant, it’s their expectation of a reward that’s key.

3.      No inducements or promises of reward were made by US and Scottish Law enforcement prior to his evidence being given.

This misses the point (see 2, above). It should be noted that according to DCI Harry Bell’s diary, on 28 September 1989, FBI agent Chris Murray told Bell that he (Murray): ‘had the authority to arrange unlimited money for Tony Gauci and relocation is available. Murray states that he could arrange $10,000 immediately.’ Murray would not have said these things unless he believe that the offer might have been put to Gauci. According to the head of the FBI investigation, Richard Marquise, “everybody that worked for me were under orders that they were not allowed to tell people that they could get money for this case.” (see http://www.scotsman.com/scotland-on-sunday/scotland/megrahi-probe-failed-to-speak-to-fbi-agents-1-2180385) So, was Murray acting against Marquise’s orders?

4.      At no stage was he offered any inducement or reward by Scottish authorities who acted with complete propriety throughout the case

Again, see 2 above. It should also be noted that in a letter to the US Department of Justice, dated 19 April 2002 (after Megrahi’s failed first appeal), the Scottish Police’s senior investigating officer wrote: ‘At the meeting on 9 April, I proposed that $2 million should be paid to Anthony Gauci and $1 million to his brother Paul. These figures were based on my understanding that $2 million was the maximum payable to a single individual by the rewards programme. However, following further informal discussions I was encouraged to learn that those responsible for making the final decision retain a large degree of flexibility to increase this figure.’ Crucially, he added that, at the request of a US official, he had consulted with the Crown Office about the reward. He reported: ‘The prosecution in Scotland cannot become involved in such an application. It would therefore be improper for the Crown Office to offer a view on the application, although they fully recognise the importance of the evidence of Tony and Paul Gauci to the case’. In other words, the Crown Office was prevented by its own rules from seeking a reward, but apparently had no intention of preventing the police from doing so.

5.      The SCCRC recognised that Tony Gauci was not motivated by money and that he had allegedly been made an offer to go to Tripoli and be rewarded “by Libyan Government officials”

This misrepresents the SCCRC’s findings. What the commission actually said is ‘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. The alleged offer of a reward by Libyan government officials was revealed in Megrahi: you are my jury (p.311-2).

With regard to the differing accounts by Megrahi the Commission noted that:

i.      There were inconsistencies and differences in account between his statements to an investigative journalist, his defence team and the SCCRC in matters of significance.

Inconsistencies in statements do not prove guilt. There were numerous inconsistencies in the statements of the Crown’s star witness Tony Gauci. Like Mr Gauci, Mr Megrahi recounted his story many times under conditions of great stress. It’s therefore hardly surprising that there were some inconsistencies between his statements.

ii.     He had “personal relationships” with various members of the Libyan intelligence services, including Senussi and accepted that he had been seconded to the Libyan intelligence services (JSO) and that Said Rashid was his superior in the JSO.

Mr Megrahi revealed these connections in Megrahi: you are my jury. It is not a crime to be related to members of the intelligence services, neither is it a crime to be a member of such services.

iii.    Senussi was involved in his secondment to Libyan intelligence services (JSO).

See ii, above.

iv.     He had travelled with a Colonel in the Libyan intelligence services (JSO) on a false passport in 1987

Mr Megrahi explains his use of a false passport in Megrahi: You are my jury. The Crown has failed to prove that he used it for purposes of terrorism.

v.      Megrahi gave the Commission conflicting accounts of his connection to the Libyan intelligence services (JSO)

Mr Megrahi has consistently said: 1) that he was seconded to the intelligence service, the JSO, for one year; 2) that he was not an intelligence agent; 3) that he was related to some senior people with the JSO. The only evidence heard at trial that he was a JSO member was the testimony of Libyan CIA informant Majid Giaka, who also claimed, on the record, that Colonel Gadafy was a freemason.

vi.     Megrahi confirmed he had knowledge of a man in Spain who was assassinated because he was allegedly an American spy

In fact Mr Megrahi volunteered this in a pre-trial precognition statement, the relevant section of which reads: “I remember that there was a man in Spain who used to send back articles from the Spanish media. Sometime during the 1990s it turned out that he was an American spy and he was assassinated.” Doubtless many other people, including Spaniards, were aware of this incident, which is entirely irrelevant to the matter of Mr Megrahi’s guilt or innocence.

vii.    Megrahi has given a number of different explanations to his lawyers and the Commission about his presence in Malta and use of a false passport on 21 December 1988

See i, above.

viii.   The SCCRC believed “there was a real risk that the trial court would have viewed his explanations … as weak or unconvincing” “In particular, the Commission notes the unsatisfactory nature of aspects of their (Megrahi and Fhimah) explanations and the various contradictions which are apparent both within and between their accounts. Although it is possible there are innocent reasons for these deficiencies, they do lead the Commission to have reservations about the credibility and reliability of both as witnesses.”

Again, see i, above. As the Crown Office knows, inconsistencies are not proof of guilt. It also failed to point out that the commission concluded in the next paragraph. “It cannot be said, however, that the applicant’s accounts amount to a confession of guilt.”

The commission’s role is to conduct an investigation and determine whether there may have been a miscarriage of justice. It does not follow that there was a miscarriage of justice, only the Appeal Court can decide that. It should be noted that not all referrals by the SCCRC result in convictions being overturned; less than half of convictions referred to the Appeal are overturned.

This is irrelevant.

In preparing for Megrahi’s second appeal [which followed the Commission’s report] the Crown had considered all the information in the Statement of Reasons and had every confidence in successfully defending the conviction in the Appeal Court for a second time. Although it is entirely a matter for the Commission if the case is referred again to the Appeal court the Crown will defend the conviction.

It is not appropriate or helpful to seek to try a case in the media. The only place to determine guilt or innocence is in a court of law. The trial court accepted that this was an act of State sponsored terrorism and that Megrahi did not act alone.

Investigations will continue to bring the others involved in the murder of 270 persons to justice.

As a result the Crown will be making no further comment on the evidence in the case and on the Statement of Reasons.

The BBC is now running this new statement by Alex Salmond, which is rather less partial than his earlier one (see end of article).

I welcome the publication in full of this report, which is something that the Scottish government has been doing everything in our powers to facilitate. I especially welcome the fact that it offers a full account of the SCCRC’s deliberations rather than the partial accounts which have appeared in the media in recent weeks. This report provides valuable information, from an independent body acting without fear or favour, and while we can not expect it to resolve all the issues in the Lockerbie case, it does however lay the basis for narrowing the areas of dispute and in many ways is far more comprehensive than any inquiry could ever hope to be. The Lockerbie case of course remains an open criminal investigation, and while the only place to determine guilt or innocence is in a court of law, the SCCRC is a valuable body which is itself part of the Scottish criminal justice system.

First minister Alex Salmond has just issued this statement. It appears that he is still desperately clinging to the fiction that Abdelbaset’s conviction is safe.  Maybe someone should tell him that appeals are not adjudicated according to the number of grounds the SCCRC acepted and rejected.

I welcome the publication in full of this report, which is something that the Scottish Government has been doing everything in our powers to facilitate.

While the report shows that there were six grounds on which it believed a miscarriage of justice may have occurred, it also rejected 45 of the 48 grounds submitted by Megrahi, and in particular it upheld the forensic basis of the case leading to Malta and to Libyan involvement.

The SCCRC of course missed the crucial forensic evidence concerning the timer fragment PT/35b, which breaks the link to Libya. Furthermore it did not consider the evidence from Luqa and Frankfurt airports, which was the basis of the Malta connection.

The Crown Office has today issued the following statement in response to the Sunday Herald’s publication of the SCCRC report. It features in a BBC online article. In my view the statement is inaccurate and misleading. My comments are in normal typeface.

The commission was working to facilitate the publication with appropriate protection for all of the persons named in it taking account of their human rights (articles two and eight) and issues of confidentiality.  The unauthorised publication by the Sunday Herald today does not deal with any of these issues which rightly constrain all public authorities by law … [The Crown Office has] become very concerned at the drip feeding of selective leaks and partial reporting from parts of the statement of reasons over the last few weeks in an attempt to sensationalise aspects of the contents out of context.

Publication was authorised by Abdelbaset, who is the person whose human rights are most affected by publication. Under Section 32 of the Data Protection Act, the media can publish in the public interest. The report does not required any sensationalising; it is sensational.

Persons referred to in the statement of reasons have been asked to respond to these reports without having access to the statement of reasons and this is to be deplored.  Further allegations of serious misconduct have been made in the media against a number of individuals for which the commission found no evidence. This is also to be deplored.  In fact the commission found no basis for concluding that evidence in the case was fabricated by the police, the Crown, forensic scientists or any other representatives of official bodies or government agencies …

This gives the impression that Megrahi: You are my jury and the previous reports in the Herald made unsubstantiated allegations against certain individuals and failed to report that the commission found no evidence that evidence was fabricated. In fact they did no such thing and were careful to report the commission’s findings on these matters.

 … [It is] not appropriate or helpful to seek to try a case in the media. The only place to determine guilt or innocence is in a court of law. The trial court accepted that this was an act of State sponsored terrorism and that Megrahi did not act alone. Investigations will continue to bring the others involved in the murder of 270 persons to justice. As a result the Crown will be making no further comment on the evidence in the case and on the statement of reasons.

It is entirely appropriate that the weaknesses in Abdelbaset’s conviction and the conduct of the Crown be explored in the media and it is ludicrous to suggest otherwise.

Last Friday afternoon the Crown Office issued a statement, which took many by surprise, announcing that the SCCRC would not be prosecuted for publishing its report on Abdelbaset’s case. As professor Bob Black noted on his blog:

For at least two-and-a-half years the issue of publication of the Scottish Criminal Cases Review Commission’s Statement of Reasons in the Megrahi case has been a matter of public and political concern. The Scottish Government first produced a Statutory Instrument The Scottish Criminal Cases Review Commission (Permitted Disclosure of Information) Order 2009 which (so it was said) was intended to facilitate publication. When that, as could have been — and was — widely anticipated, did not have the desired(?) effect, the Scottish Government introduced the Criminal Cases (Punishment and Review)(Scotland) Bill which is currently before the Scottish Parliament. This is also so hedged about with conditions that publication of anything useful under it is in the highest degree unlikely.

But wait! All of this fevered activity was completely unnecessary.  All that needed to happen was for the Lord Advocate to grant to the SCCRC immunity from prosecution under section 194J of the Criminal Procedure (Scotland) Act 1995, the provision which makes it a criminal offence for the SCCRC to publish its reports. This the Lord Advocate did yesterday.  If, as we have been assured from the outset, the Crown Office and the Scottish Government devoutly wished the Megrahi Statement of Reasons to be published, why was this step not taken long ago?

A good question. But the more immediate question, is why did the Crown Office rush out this statement on a Friday afternoon? The reason is simply that earlier that day the Sunday Herald had informed them that they would be publishing the SCCRC report today. Was the Crown Office looking to encourage the SCCRC to publish immediately, in order to draw the sting from the Sunday Herald’s coverage? And could that also explain the anonymous Crown Office quotes in yesterday’s Daily Record spoiler?