Verdicts due in Tripoli trial of Gaddafi-era officials

Verdicts are expected today in the trial before a court in Tripoli of 37 Gaddafi-era officials. As well as Saif al-Islam Gaddafi, they include figures who played a significant part in the resolution of the Lockerbie impasse between Libya and the United Kingdom and United States, including Abdul Ati al-Obeidi, Mohammed Belqasim Zwai and Abuzed Omar Dorda. See Libya court to rule on Gaddafi's son Saif, former officials on July 28 and Court to rule on Gaddafi’s son in war-torn Libya.

BBC News reports that Saif and eight others have been sentenced to death: http://www.bbc.co.uk/news/world-africa-33688391. None of the reports so far available (11.40 am) mentions Obeidi, Zwai and Dorda.

Paul Foot and the Lockerbie case

[On this date in 2004 the Pakistani newspaper Dawn published an obituary of the journalist Paul Foot, who had died ten days earlier. It was headlined A credit to his profession and reads in part:]

Another cause that Foot embraced was that of the Lockerbie victims' families, repeatedly expressing concern through much of the 1990s that in their supposed investigation of the case, the British and US governments were motivated by the need to score political points rather than a desire to find out the truth about the destruction of the Pan-Am flight over Scotland in 1988.

He noted that in the immediate aftermath of the catastrophe, the official line was that the bombing had been orchestrated by a Syrian-based Palestinian group at Iran's behest, in retaliation for the unprovoked shooting down of an Iranian passenger airliner by the US navy the previous year.

He wrote in 1995: "An interminable series in The Sunday Times in late 1989 named the gang, its leader, its bomb-maker and the Palestinian who had bought clothes in a Maltese boutique which ended up in the bomb suitcase."

Two years later, the blame suddenly shifted to Libya. By then Syria had signed up to the 1991 version of the coalition of the willing; it's co-operation was symbolically significant, so Hafez Al Assad could no longer be alienated. A different culprit therefore had to be selected.

Foot returned to the subject time and again, most recently in March this year, after the families of British Lockerbie victims complained that they had been taken for a ride by the government.

The families had backed Tony Blair's groundbreaking visit to the Libya on the grounds that it would yield some more details about how the attack was executed.The prime minister returned without any new information, nor any indication that the subject had even been broached with Libyan officials. In Foot's view, there was a simple explanation for this: Libya had nothing to reveal.

Making it clear that his opinion wasn't necessarily shared by the families, he concluded that Abdul Basit Al Megrahi, the former Libyan diplomat convicted and imprisoned for the bombing, is innocent "and his conviction is the last in the long line of British judges' miscarriages of criminal justice.

“This explanation is also a terrible indictment of the cynicism, hypocrisy and deceit of the British and US governments and their intelligence services. Which is probably why it has been so consistently and haughtily ignored."

Whether or not Foot's suspicions were well-founded, his dogged pursuit of the matter means that should the whole truth about Lockerbie ever emerge, he'll deserve a certain proportion of the credit.

[RB: Paul Foot’s Private Eye special report Lockerbie: The Flight from Justice can be read here.]

US Lockerbie relative attacks Francovich film project

[What follows is the text of a report published in The Herald on this date in 1994:]

The father of an American victim of the Lockerbie bombing has launched a bitter attack on documentary film maker Allan Francovich, who claims that his soon-to-be completed work on the destruction of PanAm flight 103 will make startling new revelations about the identity and background of the bombers.

In a letter in today's Herald, Mr Daniel Cohen, whose daughter Theodora was among the 270 people who died when the jetliner was bombed in December 1988, accuses Mr Francovich of being a ''Libyan dupe'' who is ''at best a journeyman film maker''.

The Herald reported last week that Mr Francovich's film was nearing completion. He maintained then that his efforts were being thwarted by a campaign to diminish his efforts and to undermine his professional standing.

He said anyone who challenged the official version of events, which was that the jet was bombed by the two Libyans subsequently charged by the Scottish and American authorities, was subjected to a tirade of abuse and harassment in the US.

Mr Francovich felt that the campaign was linked to Western intelligence agencies and also to the civil litigation involving PanAm and many relatives in the US courts.

However, Mr Cohen's position is at variance with that adopted by another relative, English GP Dr Jim Swire, whose daughter Flora also died on flight 103. Last week, Dr Swire wrote to The Herald commending any attempt to investigate the affair further.

Yesterday, he said: ''I am sorry that the Cohens have taken this attitude but they lost a daughter at Lockerbie, as I did, and because of that I can forgive them anything. However, Allan Francovich, in the absence of anything else, is at least making the effort to inquire further and to challenge the current situation. Nobody else is doing that. Why not let him get on with it and then judge him on whatever he comes up with?''

Dr Swire, who is a leading campaigner on behalf of British relatives, added that the reason the affair was still wide open to speculation was because there had not been a trial of the two Libyans.

''However, the thing that makes me most angry about this whole affair is that there is continuing evidence to suggest that Western intelligence agencies were warned about what was going to happen. Francovich says he has hard evidence to this effect,'' he said.

''If it is true, I want the Western intelligence agencies to know that they can't just play about with evidence like this as if it was of no importance because at the end of the day a lot of people died.''

In Paris yesterday where he was continuing to work on the film, provisionally entitled Maltese Double Cross, Mr Francovich said the charges which Mr Cohen had levelled against him were those he had often made since filming started last autumn.

''He mentions my reputation as a film maker. Well it is probably not for me to say but my work has been shown at film festivals all over the world. I have won prestigious awards and my films have been shown on BBC and Channel 4.

''He says that our negotiations with Channel 4 for broadcasting the Lockerbie film were thwarted because we had been 'bragging' about the film. Frankly, that is nonsense. The negotiations were discreet in the extreme and I still maintain that they became public by means of telephone surveillance and because of a campaign mounted by someone acting on behalf of certain relatives' interests in the US,'' said Mr Francovich.

''Mr Cohen says that the British Government has never said that they were going to ban the film.

''Well, it wasn't me who originally said that they had. These were stories printed in the Scottish press quoting unnamed Government sources.''

Mr Francovich has also been accused by Mr Cohen of being funded by the Libyans. This follows the revelation that the Lonrho subsidiary which Mr Francovich says commissioned the film was itself partly funded by the Libyan Arab Finance Company.

Mr Francovich said yesterday: ''I can only say this over and over again. This is not a pro-Gaddafi film and the public will be able to come to their own conclusions when it is shown. Frankly, this assertion is probably actionable and it may well be that our production company's lawyers will have to take legal action if the Cohens continue with this campaign against me.”

The case that won’t go away

[This is the headline over an article by John Wight published on this date in 2010 on the Socialist Unity website. It reads as follows:]

The case of convicted Lockerbie bomber, Abdelbaset Ali Mohmed Al Megrahi, and the controversy surrounding his release on compassionate grounds by the Scottish Government last year, refuses to go away.

At time of writing both Kenny McAskill, the Scottish Justice Secretary responsible for releasing Mr Megrahi, and Jack Straw, Britain’s foreign secretary at the time, have turned down requests to appear before a US Senate Committee Hearing into Megrahi’s release and whether or not any back door deals between the Libyan and British governments involving BP had any bearing on it.

The stridency and vehemence of the criticism that came from the US at the time of Megrahi’s release, and which continues to this day, reflects the double standards, hypocrisy, and dissembling which denotes US relations with the rest of the world.

Convicted and sentenced to life in prison in 2001, 11 years after the bombing was carried out, and after a trial in the Netherlands conducted under the strictures of the Scottish legal system, which for the uninitiated remains separate and distinct from its counterpart in the rest of the UK, Megrahi has consistently protested his innocence of the biggest terrorist attack ever committed in Britain, when 270 people were killed after a bomb on Pan Am Flight 103 exploded over Lockerbie on December 21, 1988. The victims comprised all 243 passengers and 16 crew members on board, along with 11 residents of the small Scottish town which gave its name to the atrocity thereafter.

Some of the relatives of the victims had consistently cast doubt over Megrahi’s conviction. One of those, relatives Jim Swire, whose daughter Flora died in the bombing, told BBC radio at the time of his release. “I don’t believe the verdict is right. It would be an abominable cruelty to force this man to die in prison.” Other relatives remained circumspect and had called for Megrahi’s scheduled appeal hearing, which he dropped a few days before his release, to go ahead. Pamela Dix, whose brother Peter died in the attack, said. “I am not absolutely convinced of Megrahi’s guilt nor of his innocence. We simply at this point do not know enough to be able to make that judgment.”

In contradistinction, victims’ families in the US had called for Megrahi to complete his sentence in Scotland and continue to be convinced of his guilt. In this they’ve been joined by their government, which in the days and weeks leading up to the Libyan’s release made strong representation to Kenny MacAskill in the form of public statements, letters from ranking senators, and even a personal phone call from US Secretary of State, Hillary Clinton.

Despite such an outpouring of protest in advance and in the wake of Megrahi’s release, and up to this day, it is well nigh certain that he was convicted and imprisoned for something he didn’t do.

During the original trial no material evidence was presented linking the Libyan to the bombing, let alone any evidence that he put the bomb on the plane or that he handled any explosives. Even the prosecution subsequently questioned the credibility of its star witness.

The central pillar of the prosecution’s case was that Megrahi wrapped the bomb in clothes before checking it on to an aircraft in Malta without boarding the aircraft himself. The bomb, the prosecution alleged, was subsequently transferred at Frankfurt on to the flight to London, and then loaded on to the flight to New York. Two years after the bombing Granada Television made a documentary of the event which included a dramatic reconstruction. In it a bag containing a bomb was loaded on to an Air Malta flight by a sinister-looking Arab, who then sloped off without boarding. Upset by the damage to its reputation, Air Malta sued Granada. The airline’s solicitors compiled a dossier of evidence demonstrating that all the bags checked on to the flight which Megrahi was supposed to have planted the bomb were accompanied by passengers and that none of those passengers travelled on to London.

The evidence was so compelling that Granada settled out of court.

Since the Crown never had much of a case against Megrahi, it was no surprise when the Scottish Criminal Cases Review Commission (SCCRC) found prima facie evidence in June 2007 that the Libyan had suffered a miscarriage of justice and recommended that he be granted a second appeal.

The truth is that this entire case, from the bombing in 1988 all the way up to Megrahi’s release in 2009, reflects a shift in the geopolitical and strategic interests of the nations concerned. Back in 1988 Libya occupied the status of international pariah in the West. The Libyan government, then as now led by Colonel Gadaffi, at one time funded and supported national liberation organisations and movements as disparate as the Provisional IRA and Black September, as well as various militant groups throughout the developing world. Relations between Libya and the West reached their nadir in the 1980s, when the Reagan administration sought to overthrow the quixotic Libyan president. Indeed, a US airstrike in 1986, carried out from military bases in Britain, almost succeeded in killing Gadaffi, who only narrowly escaped.

The overwhelming view of informed opinion is that Lockerbie was the work of Iran in conjunction with the Syrians. The Palestinian splinter group, PFLP-GC, led by Ahmed Gibril, were contracted to carry out what was an act of retaliation for the shooting down of an Iranian passenger aircraft over the Strait of Hormuz in July 1988 by the USS Vincennes. It came just two years after the story broke that officials within US intelligence and the US Government had conducted secret arms deals with Iran in an attempt to obtain the release of American hostages being held by Iranian backed militias in Lebanon. The money paid for the weapons was used to fund Contra death squads then operating in Nicaragua. In March 1988, Colonel Oliver North and John Poindexter, a former naval officer and National Security Advisor within the Reagan administration, were convicted in relation to the scandal, known to the world and to history as Iran-Contra.

The difference today is that Libya is no longer treated or perceived as a rogue state in the West. In fact, ever since renouncing his weapons of mass destruction programme in the wake of the US and British invasion and occupation of Iraq in 2003, Colonel Gadaffi has been rehabilitated as a leader the West can do business with. Given its prodigious oil and gas reserves the official visits to Libya first by former British Prime Minister, Tony Blair, in 2004, followed by former US Secretary of State, Condoleezza Rice, in 2008, were as predictable as they were revelatory. It is known that BP in particular was keen for Blair to restore relations with Libya in order to allow access to Libyan oil reserves and lobbied the government to this effect in 2007.

Part of this deal on the Libyan side involved the release of Megrahi, a member of Libyan intelligence, who was sacrificed by his government to the arms of the Scottish Justice System in an attempt to break out of the country’s economic isolation and normalise relations with the West. The expectation was that he’d be found not guilty. The expectation proved wrong.

In 2009 a Prisoner Transfer Agreement (PTA) was drawn up between both countries. At the time the only Libyan being held within the UK prison system was Megrahi, thus preparing the ground for his release.

Conveniently, Blair and Straw landed the controversy on the lap of the SNP Scottish Government, citing jurisdiction, whose decision to release Megrahi on compassionate grounds was made at the expense of his appeal going ahead. It was an appeal hearing which promised to reveal that his conviction had been bogus, a fact known to both the British and Americans at the time he was found guilty and sent to prison. The political fallout from such an eventuality would obviously have been enormous.

Regardless of the geopolitical context surrounding the Megrahi case the Scottish Government has been principled and correct in refusing to bow to US pressure both at the time of the release and now in refusing to appear in front of a Senate Hearing into the case. The issue of sovereignty is involved, as is the issue of jurisdiction.

The release of al-Megrahi was right and just. Relying on medical advice at the time, Kenny McAskill was entitled to believe that the prisoner had only three months to live. It was the decent thing to do to allow him to spend what time he had left with his family in Libya. That he’s survived this long is a moot point under the circumstances.

As for the victims of Lockerbie, justice for them continues to be denied as a result of the geopolitical machinations of their respective governments. Twas ever thus.

Megrahi's application for compassionate release

[It was on this date in 2009 that news broke that Abdelbaset Megrahi had submitted an application for compassionate release. The report on the BBC News website reads as follows:]

The man convicted of the Lockerbie bombing has asked to be released from jail on compassionate grounds.

Scottish ministers will now consider the application from Abdelbaset al-Megrahi, who was diagnosed with terminal prostate cancer last year.

Scottish Justice Secretary Kenny MacAskill will make the final decision.

If the application is successful, Megrahi's release from Greenock Prison would allow him to return to Libya without dropping his appeal.

A Scottish Government spokeswoman confirmed that ministers will now seek advice on the application.

Libya has already submitted a request to have Megrahi returned [under the Libya/UK prisoner transfer agreement].

A total of 270 people died when Pan Am Flight 103 exploded over Lockerbie on 21 December 1988.

According to The Herald newspaper, Mr MacAskill is thought to have released three terminally ill patients on compassionate grounds last year.

Traditionally, only applications from those with three months to live are granted.

Megrahi is currently being held in Greenock prison where he is receiving treatment for advanced stage prostate cancer.

South of Scotland MSP Christine Grahame, who has met Megrahi twice in recent months, said Scottish Prison Service officials had already informed her there was nowhere within the prison estate properly suited to managing his condition.

Earlier this month, she said: "This makes the case for compassionate release absolutely imperative.

"That option is not subject to judicial review and is the only sensible compromise position in light of the fresh evidence and Mr Megrahi's deteriorating health.

"The weight of evidence which has emerged combined with the serious doubts raised over the original evidence that was led at the trial have left me in no doubt of Mr Megrahi's innocence."

She added that if Megrahi was allowed to die in prison but it was later established he was innocent, people would question why the Scottish justice system "failed so dramatically".

[RB: In The Herald’s report I am quoted as saying: "Compassionate release seems to achieve the humanitarian objective of allowing Megrahi to die in his homeland among his extended family, along with the public interest and criminal justice objectives of allowing a court to rule upon the validity of an appeal in the case of a conviction that has been increasingly called into question."]

Lockerbie insurance lawsuit against US Government is still on track

[This is the headline over a report published today on the AllGov website. It reads as follows:]

In a landmark case, the US government has for the first time been denied a dismissal in a foreign claims lawsuit. The ruling by a federal judge means that the government could still be on the hook for nearly $100 million stemming from two 1980s Libyan terrorist attacks.

Three insurance companies have been trying for years to get reimbursed for claims they paid out as a result of the two Libya-sponsored terrorist attacks against airliners: EgyptAir 648 in 1985 and Pan Am Flight 103 over Lockerbie, Scotland, in 1988. The insurers, Lloyd’s of London, New York Marine and General Insurance Co and Aviation & General Insurance Co, are seeking a combined $96 million for the two attacks ($55 million for Pam Am 103 and $41 million for EgyptAir 648).

The lawsuit is directed at the US government because Congress passed the Libyan Claims Resolution Act in 2008, which took the right to oversee suits against Libya away from federal courts’ jurisdiction. “Shortly afterward, the government stopped all suits pending against Libya,” according to Benjamin Lane at Insurance Business America.

That didn’t stop the three insurers from going to court to collect monies owed to their underwriters for paying for the Libyan-sponsored attacks 30 years ago. Lawyers for the plaintiffs convinced the US Court of Federal Claims to allow their lawsuit to proceed after Judge Thomas Wheeler denied a motion by government attorneys to dismiss the case. In its denial, the court said the companies have a legitimate property interest on which to base their claims and, more importantly, did something no federal court had done before.

“The case holds landmark status as the first time the government has been denied a dismissal in a foreign claims suit,” Lane wrote.

Wheeler said in his ruling: “Here, where plaintiffs were excluded from receiving any just compensation whatsoever, the court must decide whether the government violated the Fifth Amendment prohibition of takings without just compensation. Accordingly, the court finds that it is well within its jurisdiction to decide this takings claim against the United States.”

[RB: The history of this court action can be followed on this blog here.]

News breaks in US of neutral venue Lockerbie trial

[What follows is the transcript of a news report that was broadcast on Voice of America on this date in 1998:]

Byline - Delia Robertson
Dateline - Johannesburg

Intro: The suspects in the 1988 Pan Am aircraft bombing over Lockerbie in Scotland may finally come to trial, in a compromise deal negotiated by Scottish law professor Robert Black. V-O-A's Delia Robertson talked to professor Black, who is now in South Africa on a sabbatical from the university of Edinburgh.

Robertson: Robert Black says it has taken Britain and the United States more than four years to accept a compromise that may finally bring to trial the two Libyan suspects in the 1988 bombing of a Pan American aircraft over Scotland. Professor Black, law professor at Scotland's Edinburgh university, says it is shameful it has taken so long.

Black: And it is particularly galling for the families I think, that Britain and the United States are now saying that they are the ones who were putting forward this means of resolving the logjam. In fact this proposal for resolving the logjam was submitted to those two governments four and a half years ago, and up till this week they have adamantly refused even to consider it. In my view that is disgraceful.

Robertson: The compromise for bringing the suspects to trial will mean the trial will be conducted in a neutral country -- possibly the Netherlands -- and without a jury. However, the trial will be held under Scottish law, presided over by a Scottish judge and will include a panel of judges selected by the British government.

Up until now, Britain and the United States have insisted on a trial by jury and also that it take place in Scotland or the United States. Professor Black says the Libyan suspects' lawyer refused to bring his clients before a jury trial because of the wide publicity surrounding the bombing of Pan Am flight 103 in which 270 people were killed.

Black: And the lockerbie incident has had so much publicity there, their view (suspects lawyers view is) that their clients could not get a fair trial because the jurors already have partially made up their minds because of pretrial publicity.

Robertson: Professor Black is in South Africa as a visiting professor at the University of Stellenbosch and is completing a book on Scottish law of evidence. He told V-O-A he was prompted to try and find a resolution to the Lockerbie trial impasse because he was born and raised in Lockerbie and considers himself a citizen of the town.

He said after extensive negotiations in 1994 with the suspects' lawyer, he received an undertaking the Libyans would attend a trial in a neutral country.

Black: After considerable negotiation, he agreed to those proposals and he gave me an undertaking -- in writing -- that if such a court were set up, his clients would attend for trial before it. And I also got the agreement of the Libyan government at that time, in january 1994, that they would permit their citizens to stand trial before such a court.

Robertson: The Organization of African Unity has decided to end United Nations sanctions against Libya within months because they say Libya has made concessions after at first refusing to allow its citizens to be tried by a U-S or Scottish court. Professor Black says this is what compelled Britain and the United States to accept the compromise.

Black: They, the member states of the Organization Of African Unity, would not any longer comply with United Nations sanctions against Libya as from September of this year. Now you see I think that is the real pressure that has caused Britain and United States to change their position, because the whole system involving sanctions against Libya was beginning to crumble.

Robertson: While many victims' families in the United States continue to demand a jury trial in the United States or Scotland, those in Britain have accepted the compromise proposal. Professor Black says they want two things: that the evidence be tested before an independent tribunal and that if found guilty, the suspects are punished. He says this can be achieved if the suspects are tried in a Scottish court sitting in a neutral country.

No legal justification for Megrahi's conviction

[On this date in 2007 an article written by me was published in The Scotsman.  It reads as follows:]

The fairy story of the Crown's independence

At the end of June, the Scottish Criminal Cases Review Commission (SCCRC) referred Abdelbaset Ali Mohmed 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, the Crown and the High Court) extends to more than 800 pages, accompanied by 13 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 there were six grounds on which it had concluded a miscarriage of justice might have occurred. Strangely, only four of these grounds are enumerated in the summary. They are:

• That there was no reasonable basis for the trial court's conclusion that the date of purchase of the clothes which surrounded the bomb was 7 December 1988, the only date on which Megrahi was proved to have been on Malta and so could have purchased them. The finding that he was the purchaser was "important to the verdict against him".

• That evidence not heard at the trial about the date on which Christmas lights were switched on in Malta further undermined the trial court's conclusion that the date of purchase was as late as 7 December.

• That evidence was not made available to the defence that four days before the shopkeeper made a tentative identification of Megrahi at an ID parade he had seen a magazine article containing a photograph of Megrahi, linking him to the bombing.

• That other evidence which undermined the shopkeeper's identification of Megrahi and the finding as to the date of purchase was not made available to the defence.

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 cornerstone of the Crown's case against him. If, as suggested, that finding had no reasonable basis in the evidence, then there is no legal justification for his conviction.

I have always contended that no reasonable tribunal could have convicted Megrahi on the evidence led. Here is 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 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 correct, the weather conditions in Sliema on those two days were explored. Shopkeeper Tony Gauci's evidence was that when the purchaser left his shop it was raining so heavily 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 to have 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 appeal court to fail to overturn the 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).

I contend that at least part of the answer lies in the history of the Scottish legal and judicial system. For centuries courts 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 Executive's) chief legal adviser, he (now she) would at all times, in his capacity as head of the prosecution system, act independently, 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 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 - and indeed it 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 US in a witness protection programme. Giaka's evidence was ultimately found by the court to be utterly untrustworthy. 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 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.

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. Second, they considered whether there was anything which would appear to reflect on the credibility of 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 judge, 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 these documents which relates to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of 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 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. So much for the fairness of the trial being the Crown's primary and predominant motivation!

It is surely time for all involved in the Scottish criminal justice system to put away childish things. We are all of us, judges included, surely too old to believe any longer in fairytales. Fairytales 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, as has already been called for by, among others, Dr Jim Swire, Tam Dalyell and Professor Hans Koechler, the UN observer at the Lockerbie trial.

• Robert Black, QC, FRSE, is Professor Emeritus of Scots Law at the University of Edinburgh.