Friday, 3 July 2015

Court's reasons for holding victims' relatives not entitled to pursue Megrahi appeal

[What follows is the text of the statement made by the Lord Justice Clerk, Lord Carloway, when the High Court today ruled that victims’ relatives are not entitled to pursue an appeal on behalf of a deceased convict:]

“The court will furnish a full written Opinion to the Scottish Criminal Cases Review Commission in terms of the statute (section 194(d)(3) of the Criminal Procedure (Scotland) Act 1995) in early course. At this stage, it will give brief oral reasons for its decision.
The application raises a sharp point of statutory interpretation. Section 303A(1) of the 1995 Act permits ‘any person’ to apply to the court for an order authorising him to institute or continue any appeal which could have been authorised by a convicted person who is deceased. Subsection 303A(4), however, assumes that it will be the executor of the deceased who will do so. It continues by referring also to an applicant who ‘otherwise appears to the court to have a legitimate interest’. This application on behalf of the Commission raises a general question of the scope of that phrase. The more particular issue is whether it extends to the relatives of deceased victims of a deceased convicted person and, presumably, in other cases, to the victims themselves.  
The court does not consider that this statutory provision applies to the relatives of the deceased’s victims in this case.
First, on a plain reading of the statute, the person who has a right to make an application for authority to instruct or continue an appeal is the executor, who is the personal representative of the deceased. This is demonstrated by subsection (5), whereby the person authorised to institute or continue the appeal steps into the position of the deceased in the appeal. He does not represent a separate interest. The Scottish criminal justice system does not, at present, allow victims or relatives of victims to be direct participants in criminal proceedings. The court does not consider that this provision was intended to provide such a right, just because the convicted person is deceased.  
Secondly, to decide otherwise would reverse a central element in criminal proceedings in this jurisdiction. If that were what was intended, the court would have expected it to have been spelled out clearly in the statute.  
Thirdly, in recommending this mode of procedure, the Sutherland Committee referred to persons who could demonstrate ‘good reason for pursuing an appeal, for example a personal or business partner, close relation or executor’; that meaning a close relative of the deceased, who might wish to clear the convicted person’s name posthumously and to persons with, for example, an interest in the estate of the deceased who may be affected financially by the conviction. The discussion by the Sutherland Committee provides a helpful aid to construction, were that required.
What the statute is intended to provide is an avenue whereby an executor as of right, and others in a similar relationship with the deceased, can continue or institute appeal proceedings. It is not designed to give relatives of victims a right to pursue an appeal for their own, or the public, interest in securing that miscarriages of justice should not occur.”

Families lose Lockerbie case ruling

[This is the headline over a Press Association news agency report as published today on the website of The Star. It reads as follows:]

Judges have ruled that relatives of the victims of the Lockerbie bombing should not be allowed to pursue an appeal on behalf of the only man convicted of the atrocity.

A group of British relatives argued that they had a ''legitimate interest'' in trying to get the case of Abdelbaset al-Megrahi back before a court for a full appeal.

They believe the Libyan, who died protesting his innocence in his home country in 2012, was the victim of a miscarriage of justice and want his conviction overturned.

The Scottish Criminal Cases Review Commission (SCCRC), which is once again looking at Megrahi's conviction, asked the Appeal Court in Edinburgh for guidance on whether members of the victims' families can take forward an appeal.

Previous court decisions have meant that only the executor of a dead person's estate or their next of kin could proceed with such a posthumous application. [RB: There were no previous decisions explicitly excluding victims' relatives from applying.]

A hearing took place at the court today before The Lord Justice Clerk Lord Carloway sitting with Lord Brodie and Lady Dorrian.

Delivering their judgment, Lord Carloway said that the law was "not designed to give relatives of victims a right to proceed in an appeal for their own or the public interest".

Two of the relatives of victims involved in the action - Dr Jim Swire and Rev John Moseley - were present in court for the hearing.

After the decision, they joined Aamer Anwar, solicitor for the Megrahi family and 26 British relatives of Lockerbie victims, to deliver a statement outside the court saying the fight would continue.

Mr Anwar said: "It is regularly claimed that we place victims at the heart of the justice system, so why should the families of murder victims not have a legitimate interest in seeking to overturn the wrongful conviction of the person convicted of the murder of their loved ones?

"Justice does not die with the accused, in this case Abdelbaset al-Megrahi.

"Despite 26 long years since the Lockerbie bombing the families will not give up their fight for justice and the truth.

"The matter is not concluded as we remain instructed by al-Megrahi's family."

Lockerbie families told they cannot appeal Megrahi's conviction

This is the headline over a report just published on the STV News website. It reads as follows:]

Relatives of Lockerbie bombing victims have been told they cannot pursue an appeal on behalf of the man convicted of the atrocity.

Abdelbaset al-Megrahi was found guilty of the bombing of Pan Am flight 103 over the south of Scotland on December 21, 1988, in which 270 people were killed.
Some families believe his conviction was a miscarriage of justice and say it should be overturned.
The Justice for Megrahi Campaign appealed to the Scottish Criminal Cases Review Commission (SCCRC) in June last year. [RB: The SCCRC application was not at the instance of the Justice for Megrahi campaign, but of a group of victims' relatives.]
The SCCRC asked the High Court for guidance on whether the families can take forward an appeal on Megrahi’s behalf and a hearing was held at the Appeal Court in Edinburgh on Friday.
Judges declined their petition, saying the families were not allowed to continue with the appeal.
Megrahi died in 2012 after abandoning his second appeal against his conviction.
He was released on compassionate ground in 2009 and went back to Libya.

Anniversary of shooting down of Iran Air 655 by USS Vincennes

It was on this date in 1998 that Iran Air flight 655 was shot down over the Strait of Hormuz by the USS Vincennes. The story can be followed on this blog here and on Wikipedia here.

Judges hear Lockerbie appeal bid

[This is the headline over a Press Association news agency report published today on the Yahoo! News website.  It reads as follows:]

A hearing will take place today to decide whether relatives of Lockerbie bombing victims could pursue an appeal on behalf of the only man convicted of the atrocity.

A group of British relatives maintain they have a ''legitimate interest'' in trying to get the case of Abdelbaset al-Megrahi back before a court for a full appeal.

They believe the Libyan, who died protesting his innocence in his home country in 2012, was the victim of a miscarriage of justice and say his conviction should be overturned.

The Scottish Criminal Cases Review Commission (SCCRC), which is once again looking at Megrahi's conviction, has petitioned the High Court asking for guidance on whether members of the victims' families can take forward such an appeal on the convicted man's behalf.

A hearing on the issue will take place before three judges at the Appeal Court in Edinburgh today.

Megrahi was found guilty of the bombing of Pan Am flight 103 over the south of Scotland on December 21 1988 in which 270 people were killed.

He died after abandoning his second appeal, which itself came after the SCCRC referred the case back to senior High Court judges in 2007.

Since June last year, the SCCRC has been considering a fresh, joint application from members of Megrahi's family and the Justice for Megrahi campaign group, which includes relatives of British victims of the bombing, to review the conviction.

Aamer Anwar, solicitor for the Megrahi family and 26 relatives of Lockerbie victims, said: "On June 5 2014, the Commission received an application for a further review of Mr Al-Megrahi's conviction from my office.

"This application was lodged on behalf of two separate groups: Family members of the deceased victims of the Lockerbie bombing and members of Mr Al-Megrahi's family.

"Our legal team will argue today that the Commission is premature with their petition, as the role of the SCCRC is to investigate whether there has been a miscarriage of justice.

"When Pan Am flight 103 exploded over Lockerbie on 21 December 1988, 270 people from 21 countries perished. It remains the worst terrorist atrocity ever committed in the UK but the consequences are still being felt 26 years later.

"The family members of the Lockerbie victims instructing us maintain that they have as much a right to pursue an appeal as the Megrahi family because they also believe the wrong person was convicted.

"The families hope this matter can be resolved as finality in the Megrahi case is unlikely ever to be achieved unless a referral is made to the Appeal Court."

Thursday, 2 July 2015

Substantive hearing on SCCRC Megrahi petition on Friday 3 July

In December last year the Scottish Criminal Cases Review Commission petitioned the High Court of Justiciary seeking guidance on whether relatives of Lockerbie victims, such as Dr Jim Swire and the Revd John Mosey, had a “legitimate interest” to pursue an appeal on behalf of the late Abdelbaset Megrahi, should the SCCRC decide that a miscarriage of justice might have occurred. The reaction of the relatives’ lawyers to this petition can be read here. A procedural hearing on the petition was held at the end of March 2015. The case is back before the High Court in Edinburgh tomorrow (Friday, 3 July) at 10.30 am when the substantive legal issues will be debated. Written heads of argument have been lodged by the SCCRC, the Crown and the relatives.

Lockerbie link to deported terrorist

[This is the headline over a report published on the website of The Herald newspaper on this date in 1996. It reads as follows:]

Germany has deported a Palestinian terrorist who has been linked to the 1988 Lockerbie bombing, justice officials said today. Hafez Kassem Dalkamoni was flown to Damascus, Syria, last Thursday, the news magazine Focus reported today.

A justice ministry spokes-woman in the central German city of Saarbrucken, Marion Walter, said the decision to deport Dalkamoni was made by the Federal Prosecutor's Office in Karslruhe. Dalkamoni, believed to be a member of the Damascus-based Popular Front for the Liberation of Palestine-General Command, served half of a 15-year sentence for an attack against two US military trains in 1987 and 1988. Dalkamoni and another suspected member of the Popular Front were arrested in Germany two months before Pan Am Flight 103 exploded over Lockerbie, killing all 259 people on board and 11 people on the ground. A search of the Frankfurt apartment where the men were arrested turned up a portable radio-cassette recorder containing plastic explosives similar to the type that blew up the plane.

Wednesday, 1 July 2015

"The true culprits have literally gotten away with murder"

[Following on from its article of 8 June 2000, The Lockerbie Bombing Trial: Is Libya Being Framed?, the Middle East Intelligence Bulletin published on this date in 2000 Susan Lindauer’s sworn Lockerbie deposition dated 4 December 1998. The following are a few sentences from the end of the document:]

First, the accused Libyans are effectively denied the right to a fair trial where they might bring forth witnesses in their own defense, which could immediately exonerate them of all charges. And secondly, the families are denied the ability to close this terrible wound, and experience the healing that would be gained from discovering the complete truth and facts surrounding this case.

On both accounts, I cannot be silent. I suspect my disclosure will grieve the families with the horrible revelation that US government officials have behaved so cynically and despicably as to withhold evidence in this case. And yet such a cynical and desperate act must be condemned by civilized society. I dare say Libya is entitled to financial compensation for the economic harassment her people have endured because of these blatantly false accusations, and the deliberate efforts to mislead potential judges, and victimize potential witnesses by a policy of aggressive harassment and punishment for speaking out. Meanwhile, the true culprits have literally gotten away with murder.

Tuesday, 30 June 2015

"I was not involved in the Lockerbie bombing in any way whatsoever"

[This is the headline over a report published in The Tripoli Post on this date in 2007. It reads as follows:]

Abdelbaset Ali Mohmed Al-Megrahi renewed his assertion that he is innocent after the Scottish Criminal Cases Review Commission (SCCRC) said he "may have suffered a miscarriage of justice" based on new evidence.

"I reiterate today what I have been saying since I was first indicted in 1991: I was not involved in the Lockerbie bombing in any way whatsoever," he said in a statement.

The SCCRC referred his case to the Appeal Court in Edinburgh, Scotland's highest court, which could eventually quash his conviction, throwing the case wide open and reviving speculation as to who was behind the bombing.

Megrahi, who applied for the SCCRC review, welcomed the panel's decision, saying through his lawyer that he "shall finally be recognised as an innocent man" once the entire legal process is completed.

Megrahi, now 55, was convicted by a trio of Scottish judges sitting in a special court in the Netherlands of blowing up Pan Am Flight 103 on December 21, 1988 by means of a bomb smuggled on board in a suitcase. He was jailed for a total of 27 years.

Megrahi added there was little he could say to relatives of the victims that risked sounding "insensitive" but said that "their cause is in no way served by the incarceration of an innocent man."

The SCCRC led a three-year international probe starting in 2004, interviewing 45 witnesses -- including Megrahi and Libyan co-accused Al Amin Khalifa Fhimah who was cleared -- during inquiries in Britain, Malta, Libya and Italy.

In a statement summarizing the 800-page review which was not published, the panel said it had identified six grounds where it believed "a miscarriage of justice may have occurred."

It found there was no "reasonable basis" for the original trial court's finding that various items of clothing linked to the bomb suitcase were bought from a shop in Malta on December 7, 1988. Although it had been proved that Megrahi had been in Malta several times that month, evidence at the trial was that December 7 was the only date on which he would have been able to buy the items.

Mohammed al-Zwai, a Libyan official dealing with the Lockerbie issue and former ambassador to Britain and current Libyan ambassador to Morocco, said in a statement: "The decision opens the door of hope regarding the innocence of Abdel Basset al-Megrahi ... This decision will have good consequences."

"This legal decision will have some positive effects on relations between Libya and the European Union," al-Zwai, told AFP. "There will be more flexibility over all the dossiers on hold between the EU and Libya," added Zwai. said the Scottish panel's decision "opens the door of hope for an acquittal".

A previous appeal by Al-Megrahi, who is being held in a jail near Glasgow, western Scotland, was thrown out in 2002.

Jim Swire, a doctor who lost his daughter Flora in the bombing, said the decision opened a "new chapter" in the nearly 19-year search for the truth for the victims' families.

Swire told BBC radio: "I went into that court in Holland thinking I was going to see the trial of those who were responsible for the murder of my daughter.

"I came out thinking he had been framed. I'm very much afraid that we saw steps taken to ensure that a politically-desired result was obtained."

[A long profile of Jim and Jane Swire was published in The Herald on the same date.  It can be read here.]

Monday, 29 June 2015

Flawed trial and appeal proceedings

[What follows is the text of a statement released by Professor Hans Köchler on this date in 2007:]

Vienna, Austria, 29 June 2007/P/HK/20429

Dr Hans Köchler, President of the International Progress Organization (IPO) and Head of the Dept. of Philosophy at the University of Innsbruck, Austria, served from 5 May 2000 until 14 March 2002 as international observer at the Scottish Court in the Netherlands ("Lockerbie Court"). He had been nominated by the Secretary-General of the United Nations,  Mr Kofi Annan, on the basis of Security Council resolution 1192 (1998). Dr Köchler issued two comprehensive analytical reports after the Trial (3 February 2001) and after the Appeal (26 March 2002) respectively, which the International Progress Organization submitted to the United Nations.

In his reports, Dr Köchler was highly critical of the proceedings and questioned the fairness and impartiality of both the trial and appeal courts. In an interview for the BBC on 14 March 2002, he described the dismissal of the appeal as a "spectacular miscarriage of justice" (BBC News World Edition). At the time, the Scottish judicial establishment had tried to dismiss Dr Köchler's conclusion as a misunderstanding of the Scottish judicial system. The decision of the Scottish Criminal Cases Review Commission (SCCRC) to refer the case of Abdelbaset Ali Mohamed Al Megrahi back to the Scottish High Court of Justiciary has - after additional investigations lasting more than five years - confirmed Dr Köchler's original concerns. In particular, the SCCRC had doubted the credibility of one of the key witnesses, Maltese shop owner Tony Gauci, stating in its News Release of 28 June 2007 "that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items [clothes that were found in the wreckage of the plane] from Mary's House [in Malta] took place on 7 December 1988." Exactly this point had been stated in some detail by Dr Köchler in his appeal report of 26 March 2002 (!) (paras 10, 15 and 16).

However, in interviews conducted yesterday by representatives of the Scottish, British and German media, Dr Köchler expressed his surprise at the Commission's focus of review and apparent bias in favour of the judicial establishment: "In giving exoneration to the police, prosecutors, and forensic staff, I think they show their lack of independence. No officials to be blamed, simply a Maltese shopkeeper." (The Herald, Glasgow, 29 June 2007)
****
The decision, announced by the Scottish Criminal Cases Review Commission (SCCRC) on 28 June 2007, to refer Mr. Al Megrahi's case back to the High Court of Justiciary has been long overdue and has created the chance for a second legal evaluation by an Appeal Court of five Scottish judges.

It is to be hoped that, in view of the far-reaching political implications and international ramifications of the case, this time the judges will act in full independence and that the proceedings will meet the standards of fair trial under the European Convention for the Protection of Human Rights and Fundamental Freedoms. If this final chance to put things right and conduct criminal proceedings in a fair and fully transparent manner is missed, irreparable damage will be done to the rule of law in Scotland and to the principle of "devolution" of important areas of public administration from the United Kingdom level to that of Scotland.

The undersigned would like to restate the point he made in his appeal report in 2002, namely that the final arbiter of the fairness of Scottish criminal proceedings (after all means of review in the domestic context have been exhausted) is the European Court of Human Rights (Strasbourg) that exercises its jurisdiction on the basis of the European Human Rights Convention.

Regrettably, the SCCRC has not disclosed all its grounds of referral and, in its news release of 28 June, has basically concentrated on the dubious role of Maltese witness Tony Gauci - while at the same time engaging in a rather strange exercise of "preventive exoneration" of certain people belonging to the British and/or Scottish police and judicial system whose behaviour, as pointed out in the undersigned's reports and confirmed, in the meantime, in several affidavits, has been highly questionable and may have detrimentally affected the fairness of the proceedings (see IPO News Release of 14 October 2005). It is particularly difficult to comprehend why the SCCRC would take great pains to "absolve" Mr Megrahi's defense team during the trial and first appeal from any criticisms in regard to their performance in the interest of their client (Par. 4.1 of the News Release of the SCCRC). The lack of integrity of the defense was obvious to the undersigned during the two years he observed the proceedings at Camp Zeist in the Netherlands and was the object of a conversation of the undersigned with the appellant (Mr Megrahi), arranged, at the latter's request, by the Scottish Court Service at HM Prison Zeist.

In view of the flawed trial and appeal proceedings, now acknowledged, at least in part, by the Scottish Criminal Cases Review Commission, and for the sake of transparency, the report of the Commission should be made public in its entirety. The victims' families as well as the international public deserve to know the full truth about the reasons of referral of Mr Al Megrahi's case back to the High Court of Justiciary.

In conformity with the principle of transparency of the proceedings that was guiding United Nations Security Council resolution 1192 (1998) (operative para 6), the proceedings of the Scottish Appeal Court should again be witnessed by international observers.

The undersigned renews his call for a full and independent public inquiry of the Lockerbie case and its handling by the Scottish judiciary as well as the British and US political and intelligence establishments. In order to avoid bias, such an investigation will require the participation of additional legal experts, to be appointed by the United Nations Organization, from countries that are not involved in the Lockerbie dispute.

Those politicians in the United Kingdom and the United States who have proclaimed an international "war on terror" will not be credible in their strategy if they prevent a full investigation into the causes of the explosion of Pan Am flight 103 over Lockerbie. All those responsible, without exception,  must be brought to justice.

(signed) Dr Hans Köchler

Sunday, 28 June 2015

"No reasonable basis in the trial court's judgment for its conclusion"

[Eight years ago today the Scottish Criminal Cases Review Commission referred the conviction of Abdelbaset al-Megrahi back to the High Court of Justiciary. At the time, the only information that came into the public domain was contained in the SCCRC’s press release. That information formed the basis of an article that I wrote a few days later. It reads as follows:]

On 28 June 2007 the Scottish Criminal Cases Review Commission referred Abdel Basset Al-Megrahi’s conviction of the Lockerbie bombing back to the High Court of Justiciary for a further appeal. The case had been under consideration by the SCCRC since September 2003 and its statement of reasons (available only to Megrahi, to the Crown and to the High Court) extends to over 800 pages, accompanied by thirteen volumes of appendices. The Commission, in the published summary of its findings, rejected submissions on behalf of Megrahi to the effect that evidence led at the trial had been fabricated and that he had been inadequately represented by his then legal team, but went on to indicate that there were six grounds upon which it had concluded that a miscarriage of justice might have occurred. Strangely enough, however, only four of these grounds are enumerated in the summary. They are as follows:

“A number of the submissions made on behalf of the applicant challenged the reasonableness of the trial court's verdict, based on the legal test contained in section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. The Commission rejected the vast majority of those submissions. However, in examining one of the grounds, the Commission formed the view that there is no reasonable basis in the trial court's judgment for its conclusion that the purchase of the items from Mary's House, took place on 7 December 1988. Although it was proved that the applicant was in Malta on several occasions in December 1988, in terms of the evidence 7 December was the only date on which he would have had the opportunity to purchase the items. The finding as to the date of purchase was therefore important to the trial court's conclusion that the applicant was the purchaser. Likewise, the trial court's conclusion that the applicant was the purchaser was important to the verdict against him. Because of these factors the Commission has reached the view that the requirements of the legal test may be satisfied in the applicant's case.

“New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in thearea of Sliema in which Mary's House is situated. In the Commission's view,taken together with Mr Gauci's evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant was in Malta.

“Additional evidence, not made available to the defence, which indicates that four days prior to the identification parade at which Mr Gauci picked out the applicant, he saw a photograph of the applicant in a magazine article linking him to the bombing. In the Commission's view evidence of Mr Gauci's exposure to this photograph in such close proximity to the parade undermines the reliability of his identification of the applicant at that time and at the trial itself.

“Other evidence, not made available to the defence, which the Commission believes may further undermine Mr Gauci's identification of the applicant as the purchaser and the trial court's finding as to the date of purchase.”

The implications for the verdict of guilty
The reasons given by the Commission for finding that a miscarriage of justice may have occurred in this case are not limited to the effect of new evidence which has become available since the date of the original trial and the non-disclosure by the police and prosecution of evidence helpful to the defence. The prima facie miscarriage of justice identified by the Commission includes the trial court’s finding in fact on the evidence heard at the trial that the clothes which surrounded the bomb were purchased in Malta on 7 December 1988 and that Megrahi was the purchaser. This was the very cornerstone of the Crown’s case against him.   If, as suggested by the Commission, that finding in fact had no reasonable basis in the evidence, then there is no legal justification whatsoever for his conviction by the trial court.

The implications for the Scottish criminal justice system
The present writer has always contended that no reasonable tribunal could have convicted Megrahi on the evidence led at the trial.   Here is just one example of the trial court’s idiosyncratic approach to the evidence. Many more could be provided.

A vitally important issue was the date on which the goods that surrounded the bomb were purchased in a shop in Malta. There were only two live possibilities: 7 December 1988, a date when Megrahi was proved to be on Malta and 23 November 1988 when he was not. In an attempt to establish just which of these dates was the correct one, the weather conditions in Sliema on these two days were explored. The shopkeeper’s evidence was that when the purchaser left his shop it was raining so heavily that his customer thought it advisable to buy an umbrella to protect himself while he went in search of a taxi. The unchallenged meteorological evidence led by the defence established that while it had rained on 23 November at the relevant time, it was unlikely that it had rained at all on 7 December; and if there had been any rain, it would have been at most a few drops, insufficient to wet the ground.  On this material, the judges found in fact that the clothes were purchased on 7 December.

On evidence as weak as this how was it possible for the trial court to find him guilty? And how was it possible for the Criminal Appeal Court to fail to overturn that conviction?   The Criminal Appeal Court dismissed Megrahi’s appeal on the most technical of technical legal grounds: it did not consider the justifiability of the trial court’s factual findings at all (though it is clear from their interventions during the Crown submissions in the appeal that at least some of the judges were only too well aware of how shaky certain crucial findings were and how contrary to the weight of the evidence).

It is submitted that at least part of the answer lies in the history of the Scottish legal and judicial system. For centuries judges have accorded a specially privileged status to the Lord Advocate.   It has been unquestioningly accepted that, though a political appointee and the government’s (now the Scottish Executive’s) chief legal adviser, he (now, of course, she) would at all times, in his capacity as head of the prosecution system, act independently and without concern for political considerations and would always place the public interest in a fair trial above the narrow interest of the prosecution in gaining a conviction. This judicial vision of the role of the Lord Advocate was reinforced by the fact that, until the Scottish Judicial Appointments Board commenced operations in 2002, all Scottish High Court judges (and sheriffs) were nominated for appointment to the Bench by the Lord Advocate of the day. This meant that, in all criminal proceedings, the presiding judge owed his position to the person (or one of his predecessors in office) who was ultimately responsible for bringing the case before him, and for its conduct while in his court.

The behaviour of the Crown in the Lockerbie trial was certainly not beyond criticism -- indeed casts grave doubt on the extent to which the Lord Advocate and Crown Office staff can be relied on always to place the interest of securing a fair trial for the accused above any perceived institutional imperative to obtain a conviction. To illustrate this in the context of the Lockerbie trial it is enough to refer to the saga of CIA cables relating to the star Crown witness, Abdul Majid Giaka, who had been a long-standing CIA asset in Libya and, by the time of the trial, was living in the United States under a witness protection programme.

Giaka’s evidence was ultimately found by the court to be utterly unworthy of belief.  This was largely due to the devastating effectiveness of the cross-examination by defence counsel. Their ability to destroy completely the credibility of the witness stemmed from the contents of cables in which his CIA handlers communicated to headquarters the information that Giaka had provided to them in the course of their secret meetings. Discrepancies between Giaka's evidence-in-chief to the Advocate Depute and the contents of these contemporaneous cables enabled the defence to mount a formidable challenge to the truthfulness and accuracy, or credibility and reliability, of Giaka's testimony.  Had the information contained in these cables not been available to them, the task of attempting to demonstrate to the court that Giaka was an incredible or unreliable witness would have been immensely more difficult and perhaps impossible.

Yet the Crown strove valiantly to prevent the defence obtaining access to these cables.

At the trial, on 22 August 2000, when he was seeking to persuade the Court to deny the defence access to those cables in their unedited or uncensored form, the then Lord Advocate, Colin Boyd QC,   stated that the members of the prosecution team who were given access to the uncensored CIA cables on 1 June 2000 were fully aware of the obligation incumbent upon them as prosecutors to make available to the defence material relevant to the defence of the accused and, to that end, approached the contents of those cables with certain considerations in mind.

Mr Boyd said: "First of all, they considered whether or not there was any information behind the redactions which would undermine the Crown case in any way. Secondly, they considered whether there was anything which would appear to reflect on the credibility of Mr Majid… On all of these matters, the learned Advocate Depute reached the conclusion 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... I emphasise that the redactions have been made on the basis of what is in the interests of the security of a friendly power... Crown counsel was satisfied that there was nothing within the documents which bore upon the defence case in any way."

One of the judges, Lord Coulsfield, then intervened: "Does that include, Lord Advocate ... that Crown counsel, having considered the documents, can say to the Court that there is nothing concealed which could possibly bear on the credibility of this witness?"

The Lord Advocate replied: "Well, I'm just checking with the counsel who made that -- there is nothing within the -- -- 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 on these matters."

Notwithstanding the opposition of the Lord Advocate, the court ordered the unedited cables to be made available to the defence, who went on to use their contents to such devastating effect in questioning Giaka that the court held that his evidence had to be disregarded in its entirety. Yet, strangely enough, the judges did not see fit publicly to censure the Crown for its inaccurate assurances that the cables contained nothing that could assist the defence.

Beyond the Lockerbie trial, the failure of the Crown to place the public interest in a fair trial above the interest of the prosecution in obtaining convictions is illustrated by the extent to which the Lord Advocate has recently had to be dragged, kicking and screaming, through the Privy Council in London before making available to the defence material in the prosecution’s possession that no-one could conceivably deny was of relevance and assistance in the accused person’s defence: see Holland v HMA 2005 SCCR 417;   Sinclair v HMA 2005 SCCR 446. So much for the fairness of the trial being the Crown’s primary and predominant motivation!

“When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.” (I Corinthians xiii. 11) It is high time for all involved in the Scottish criminal justice system to put away childish things. All of us, judges included, are surely too old to believe any longer in fairy tales. Fairy tales can be convenient and comforting and can bolster our self esteem. But, as in the case of the belief that the Crown can uniformly be relied upon always to act selflessly in the public interest, they can be dangerous and, if acted upon, work terrible injustice.

It is submitted that the Lockerbie case demonstrates just how necessary it is, if public confidence is to be maintained, for the Scottish Executive to institute a high-powered, independent, investigation into all three aspects -- investigation, prosecution and adjudication -- of the Scottish criminal justice system.

[The full text of the SCCRC’s 2007 Statement of Reasons is now in the public domain. It can be read here.]