Institutionally Corrupt : Crown Office, Police & Lord Advocate accused of criminality over Lockerbie trial injustice

Scotland’s Crown Office played a role in perverting the course of justice at Lockerbie trial, say many in Scots legal world. Scotland’s institutionally corrupt Crown Office & Procurator Fiscal Service (COPFS) which is headed by the Lord Advocate, has been accused of criminality over their part in the trial of Abdelbasset al Megrahi for the bombing of Pan Am Flight 103 over Lockerbie, Scotland in December 1988.

The Justice for Megrahi group have made the accusations in a letter to Scotland’s Justice Secretary Kenny MacAskill, who has been in the justice portfolio now for over five years, with little to show for any improvements in Scotland’s now notoriously “Victorian” justice system.

The letter from the Justice for Megrahi group is reprinted below, followed by coverage from BBC News. More on the story can also be read on Professor Robert Black’s Lockerbie Case blog Previous coverage on the Lockerbie case by Scottish Law Reporter can be viewed here Lockerbie Trial

Letter from Justice for Megrahi group to Kenny MacAskill :

Dear Mr MacAskill,

The Committee of Justice for Megrahi hereby formally lodge with you complaints alleging criminal wrongdoing in the investigation and prosecution of Abdelbaset al-Megrahi and Lamin Fhimah for the murder of 270 people in the downing of Pan Am 103 on 21 December 1988.

These complaints are directed against the persons and bodies named below whom, for the reasons given, we believe may be guilty of the criminal offences specified.

1. On 22 August 2000 the Lord Advocate, Colin Boyd QC, communicated to the judges of the Scottish Court in the Netherlands information about the contents of CIA cables relating to the Crown witness Abdul Majid Giaka that was known to members of the prosecution team [A. B. and C. D.] who had scrutinised the cables, to be false. The Lord Advocate did so after consulting these members of the prosecution team. It is submitted that this constituted an attempt to pervert the course of justice.

2. Members of the Lockerbie prosecution team, including but not limited to [C. D.], devised and presented or allowed to be presented to the trial court a scenario regarding the placement of items in luggage container AVE4041 which was known to be false, in order to obfuscate and conceal compelling evidence that the bomb suitcase was introduced by a terrorist infiltration at Heathrow airport. It is submitted that this constituted an attempt to pervert the course of justice.

3. Dumfries and Galloway Police, and those individuals employed by that force responsible for the recording, prioritising and submission to the Crown Office of evidence gathered in the investigation into the downing of Pan Am Flight 103, and the Crown Office, and those individuals in that organisation responsible for the analysis of said evidence and identifying what material required to be passed on to those acting for Megrahi and Fhimah, concealed the witness statement relating to the break-in to Heathrow airside giving access to the luggage loading shed used by Pan Am 103 in the early hours of 21 December 1988 which was provided by Heathrow Security Officer Raymond Manly to the Metropolitan Police shortly after Mr Manly’s discovery of the break-in. It is submitted that the concealment of this witness statement, which was or ought to have been known to Dumfries and Galloway Police and the Crown Office to be of the highest possible significance to the defence, constituted an attempt to pervert the course of justice.

4. [In the course of his testimony at Camp Zeist, witness E. F.] told the Court that the materials and tracking analysis of fragment PT/35b, the sliver of printed circuit board said to have originated from a circuit board contained in one of the 20 MST-13 digital timer instruments supplied by MEBO AG to Libya (the boards for all these timers having been custom-made for MEBO by Thuring AG), were “similar in all respects” to the control samples of MST-13 circuit boards. [E. F.] consistently used this form of words to describe analyses of items which were identical or of common origin. This statement was false. While the tracking pattern was indeed identical, [E. F.] was aware that the coating on the circuitry of the control boards was the standard alloy of 70% tin and 30% lead, while the coating on the circuitry of fragment PT/35b (most unusually) lacked the 30% lead content. It is submitted that his statement to the Court was a deliberate falsehood designed to conceal a significant and material difference between the evidential fragment and the control items, and thus constituted both perjury and an attempt to pervert the course of justice.

5. The Lockerbie investigation, and in particular [police officer G. H.], knew by 1990 that the coating on the circuitry of fragment PT/35b was composed of pure tin, and that this composition was highly unusual, being described as “by far the most interesting feature” of the fragment by all the experts who were consulted, “without exception”. By early 1992 [G. H.] and those in the Crown Office to whom he reported also knew that the metallurgy testing on the control MST-13 circuit boards showed the circuitry on these boards to be coated with the standard 70% tin / 30% lead alloy. [G. H.] and those in the Crown Office to whom he reported either failed to inquire with the manufacturer Thuring AG whether they had supplied any MST-13 timer boards with the unusual lead-free coating, or did make such inquiries and failed to disclose the results of these inquiries to the defence. It was discovered by the defence team in 2008 that Thuring AG did not manufacture printed circuit boards with a lead-free coating, and indeed lacked the manufacturing capacity to do so. If [G. H.] and/or those in the Crown Office to whom he reported failed to make the relevant inquiries with Thuring AG, it is submitted that this omission was grossly negligent. If [G. H.] and/or those in the Crown Office to whom he reported made such inquiries and failed to disclose the results to the defence, it is submitted that this failure constitutes an attempt to pervert the course of justice.

6. From our assessment of the ‘SCCRC Statement of Reasons’, relating to its referral of Mr. Megrahi’s case to the Court of Criminal Appeal in 2007, and the ‘Grounds of Appeal 1 and 2' documents prepared by his legal team in furtherance of that appeal, it is clear that a number of questions have been raised in relation to the process which led to the identification of Mr. Megrahi by witness Mr. Anthony Gauci. These include doubts about the legitimacy of the process by which Mr. Gauci’s identification evidence was obtained, assessed and delivered, and what prompted significant failures by the Crown to disclose related material information. From these documents it appears that [police officer I. J.] and other police officers who were involved in this identification process might well have been aware that a number of the aspects of the process they were following were flawed and did not accord with guidelines extant at the time or with any general principles of fairness to the accused. It is submitted that the omissions and failings referred to in the relevant reports indicate that [I. J.] and others have important questions to answer in connection with the identification process, and we believe, taken as a whole, that their conduct constitutes an attempt to pervert the course of justice and a breach of section 44 (2) of the Police (Scotland) Act 1967 (violation of duty by a constable).

The above numbered complaints simply constitute the basic allegations. Documents containing detailed supporting material have been prepared and will be made available to the investigating authorities as and when requested by them.

You above all will realise the seriousness of these allegations which strike at the very heart of the Lockerbie investigation past and present. Effectively, we are complaining about the actions of Crown Office officials, the prosecution and investigating authorities including the police, and certain other agencies and individuals. Given the controversy surrounding this whole affair we request that you give serious thought to the independence of any investigating authority you appoint. As a group we believe that you should appoint someone outwith Scotland who has no previous direct or indirect association with Lockerbie or its ramifications.

You will be aware of the disquiet we feel about the delay and obfuscation which have surrounded this whole affair since 1988. Nevertheless we understand you will require reasonable time to inquire into these allegations and decide how you wish to proceed.

We therefore propose to keep these matters private and confidential for a period of thirty days from the date of this letter to allow you to carry out the necessary enquiries, decide how you wish the matter to be investigated, and respond to us. We thereafter reserve the right to make the above matters public as and when we feel appropriate and reasonable. Furthermore, on the grounds that JFM’s petition PE1370 is due for consideration on 25 September, we also reserve the right to inform the Justice Committee of the fact that we have lodged this document with yourself, making reference (in general terms only) to the fact that it contains serious allegations relating to the Lockerbie/Zeist case.

In passing we would also note the recent publicity given to the perceived lack of independence in Scotland between the Lord Advocate and the Scottish Government by Mr. Andrew Tickell.

We also share this concern and would hope, for reasons that must be obvious from the foregoing, that your response to this letter will be free from Crown Office influence of any kind.

We thank you for your time and attention in this matter and look forward to an acknowledgment of receipt by return.

On behalf of the Committee of Justice for Megrahi

BBC News reports :

Lockerbie group accuse Lord Advocate Colin Boyd

By Reevel Alderson Home affairs correspondent, BBC Scotland

Scotland's former chief prosecutor Lord Boyd has been accused by campaigners for the Lockerbie bomber of attempting to pervert the course of justice.

Justice for Megrahi (JFM) also claim police, forensic scientists and Crown Office personnel broke the law.

The Scottish government said JFM should send any evidence to Dumfries and Galloway police which carried out the original investigation into Lockerbie.

Abdelbaset al-Megrahi is the only man convicted of the 1988 atrocity.

Three judges heard the evidence without a jury at a special court in the Netherlands in 2001, when Lord Boyd was lord advocate.

They sentenced Megrahi to life imprisonment for the murder of the 270 people who died when Pan Am 103 was blown up over the Scottish town.

Megrahi died in May this year of inoperable prostate cancer.

Justice for Megrahi

The convicted bomber had abandoned a second appeal against his conviction in 2009 shortly being sent from a Scottish prison to Libya on compassionate grounds.

But campaigners, who want Megrahi's conviction overturned, have kept up their demands for a public inquiry into the investigation and prosecution of the Lockerbie case.

On Tuesday, JFM published a letter it had sent to Scotland's Justice Secretary Kenny MacAskill detailing its complaints about the legal process.

It claimed the lord advocate at the time, Lord Boyd, who led the Lockerbie prosecution, gave information to the trial judges which members of his team knew to be false.

It concerned the contents of American CIA cables relating to the prosecution witness, Abdul Majid Giaka.

In its letter, JFM said: "It is submitted this constituted an attempt to pervert the course of justice."

It makes similar claims about members of the prosecution team at the trial at Kamp Zeist in the Netherlands, and about police and forensic officers.
convicted Lockerbie bomber Abdelbaset al-Megrahi died in May

JFM said its allegations "strike at the very heart of the Lockerbie investigation past and present".

It said it had documents of supporting material - but gave no details.

The campaign group repeated its call for an independent inquiry to be held by someone outwith Scotland.

Mr MacAskill has not replied to the letter, but asked Neil Rennick, deputy director of the Scottish government's justice directorate to do so.

Mr Rennick repeated the government's view that only a court had the power to uphold or overturn Megrahi's conviction.

He said: "Scottish ministers take exceptionally seriously any suggestion of inappropriate or criminal activity by individuals with key responsibilities with Scotland's justice system.

"Such allegations should be reported and investigated through the appropriate procedures."

He said it was not for the government to investigate allegations of criminality; it was for the lord advocate who is independent of government.

Mr Rennick told JFM it should provide evidence of its allegations to Dumfries and Galloway Constabulary which carried out the Lockerbie investigation.

Lord Boyd, who is now a judge, has made no comment.

But the Crown Office said it considered the allegations to be defamatory.

It added: "These allegations have been addressed and rejected in a combination of court hearings, an inquiry by Lothian and Borders police and the investigation by the Scottish Criminal Cases Review Commission (SCCRC).

"The SCCRC was satisfied after full and proper investigation that there was 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."

'Justice for Megrahi' Petition calling for an independent inquiry into Lockerbie Bomber’s conviction has second hearing at Scottish Parliament

PETITION PE1370 by the Justice for Megrahi group, calling on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988, has had its second hearing at the Petitions Committee today.

After a discussion on the petition, the Committee agreed to write to the Scottish Government, Scottish Criminal Cases Review Commission and the Crown Office and Procurator Fiscal Service seeking a response to specific points.

Written submissions on Petition PE1370 can be found HERE and our earlier coverage of the Petition can be found HERE

Justice for Megrahi Petition PE1370 Scottish Parliament 25 January 2011 (Click image below to view video)

The minutes of the Petitions Committee’s deliberations during its 25 January 2011 meeting follow :

Scottish Parliament Petitions Committee consideration of Petition PE1370 25 January 2011

Justice for Megrahi (PE1370)

The Convener: The next petition is by Dr Jim Swire, Professor Robert Black QC, Mr Robert Forrester, Father Patrick Keegans and Mr Iain McKie, on behalf of Justice for Megrahi. Christine Grahame is here. Christine, would you like to address the committee and then we can go to questions?

Christine Grahame (South of Scotland) (SNP): Thank you, convener. I commend the members of the committee for their stamina in these late sittings. I do not know if I have it.

I refer to point 2 of the Scottish Government's letter of 7 January, which states:

"A second appeal, following a referral from the Scottish Criminal Cases Review Commission, was abandoned by Mr Al-Megrahi. The conduct of his defence during his trial and the appeals, including his decision not to give evidence at trial and the decision to abandon the second appeal, was entirely a matter for Mr Al-Megrahi and his legal advisors."

The letter goes on to say that the petitioners invite the Government to do something that falls properly within the criminal justice system and that there are routes available within that system, so that should be an end of the matter.

If I may say so—and I am quite ready to challenge my own Government—those are not the facts. First, we know why Mr Megrahi abandoned his appeal, because Maggie Scott QC told the court why he did so. I will paraphrase, but she said words to the effect that her client, Mr Megrahi, believed that doing so would assist with his applications—plural—meaning his applications for prisoner transfer and for compassionate release. Prisoner transfer, of course, required abandonment of appeal and compassionate release did not. We can struggle over why he abandoned it and who said what to whom, but that is a fact and what he believed, so these are extraordinary circumstances.

We must then challenge whether there is a route open to Mr Megrahi within the criminal justice system other than a public inquiry. If members will bear with me, I will refer, I hope in a rather lawyerly way, to the legislation that was brought in recently to deal with people who were not being represented when they were charged. I will get the name of it in a moment—bear with me. I will just make my submission, then I will tell you the name of the act. Here we are. It is the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010. If members recall, we dealt with the legislation all in one day, from stage 1 through to stage 3. There is a section in it that I tried to have deleted because it did something radical to the Scottish Criminal Cases Review Commission, which you will know is an independent body that was set up in 1999 to deal with miscarriages of justice independently of the courts and independently of us, thankfully. Section 7(3)(2) of the act does something strange in relation to the Scottish Criminal Cases Review Commission. It states:

"In determining whether or not it is in the interests of justice that a reference should be made, the Commission must have regard to the need for finality and certainty in the determination of criminal proceedings."

For the Scottish Criminal Cases Review Commission, which is an independent body, to say that there might have been a miscarriage of justice is no longer good enough. It has to say, "We think there might have been a miscarriage of justice, but nevertheless, because of the need for finality and certainty, we are not going to refer it to the High Court."

However, say a case did pass the test and the commission referred it to the High Court. Previously, the High Court had to accept a referral with no ifs and no buts, but that also changed under the emergency legislation. The act states:

"In determining whether or not it is in the interests of justice that any appeal arising from the reference should proceed, the High Court must have regard to the need for finality and certainty in the determination of criminal proceedings."

So we have the first hurdle, and if the SCCRC says that the case passes the test of finality and certainty and passes it to the High Court, it sets the test again—the very High Court that heard the case in the first place. To me, that is not a just system.

Going to the Scottish Criminal Cases Review Commission is no shoe-in. Many people apply but few get to the stage of a referral. However, referrals can be very successful. If we look at the commission's success rate, we see that it made four referrals on sentencing in 2010, two of which were successful and two of which are still being determined. For sentencing alone—obviously, if someone's conviction has gone, they have no sentence—there were four referrals, two of which were successful, one of which failed and one of which is still being determined. The commission does not make referrals willy-nilly, and they are quite successful.

My concern is that that route will no longer be open, not just to Megrahi but to others. My understanding is that, in certain circumstances, the SCCRC can make a referral even though an appeal has been abandoned.

The circumstances of the case are very strange and there are so many unanswered questions, whether for people who believe he is guilty, people who believe he is innocent or the victims' families. No line has been drawn in the sand on the matter.

The route that I mentioned has now been blocked. To give the cabinet secretary his due, he said when I raised the matter that he would review it. A panel of judges is reviewing the legislation and he will review how it operates.

I have taken the time to say that because, first of all, the Government is saying that Megrahi closed the appeal himself—well, we know why.

Secondly, the Government is saying that the criminal justice system has a route, but I think that the SCCRC has been neutered in many respects.

I wish the committee to continue to pursue the inquiry route, and not to close the petition. Convener, I suggest that you confirm with the SCCRC whether it can re-open an abandoned appeal on its own and I would also like to know the SCCRC's views on that limiting of its powers—if any—and when the review panel will report on the functioning of the legislation.

The committee may feel that that is not pertinent to the petition, but I feel that it really is. If members do not know about that bit, they do not know why people are pressing so hard for a public inquiry; it is because they have concerns that everything else is being shut down.

The statement of reasons has not been published, because the subordinate legislation says that if any third party has given evidence—even indirectly—and they do not want it published, it will not be published, so we will pretty well not get anything. This is the final court.

On the mace, it says that we will have justice, integrity and compassion. No wonder the petitioners call themselves Justice for Megrahi—frankly, at the moment, there has not been justice for anybody in this particular case.

The Convener: Okay, thank you.

Bill Butler: I suggest to colleagues that we continue, and I will delimit the way in which we do so. I was going to say that this committee had no further locus, because we have been told that the Scottish Government has again stated that it has no plans to initiate an inquiry on the issue and has clarified why it does not consider an inquiry to be necessary. Christine Grahame referred to that statement in the letter from the Scottish Government that we received.

We have to realise that this is simply a public petitions committee, and we certainly cannot make a judgment in a formal way. However, it would be at least worth while—I am not sure how colleagues feel about this—if we did two things.

First, we could, as Christine Grahame suggests, write to the cabinet secretary to ask whether he will review the application of the emergency legislation as he has promised. If that is his intention—which I do not doubt, because he told Christine Grahame, a member of the Parliament, that that was his intention—when will his review take place, and when and how will his decision in that respect be made known? Secondly, on another point that Christine Grahame raised, can the SCCRC open an abandoned appeal?

Those are the two questions. On the first, we hope that we know the answer, or part of it. On the second, we really do not. We can continue on those two specific points.

I must say this, however. Once we ask those questions, unless someone is ingenious enough to come up with other ways in which we could legitimately continue the matter as a public petitions committee—because the arguments and the controversy will continue—we will have to close the petition. However, I suggest to colleagues that it is worth while for us to continue by asking the fairly narrow questions that Christine Grahame has suggested we ask.

17:30

Cathie Craigie: I support what Bill Butler has said, particularly in his final summary. We must go back and ask for a further couple of points to be clarified. If we do not get anywhere, it is difficult to see where the committee can go.

Point 3 of the Government's letter refers to the Inquiries Act 2005. The Government's reason for saying that it cannot conduct a public inquiry is weak—I will not use the same words as the petitioners used in their submission. The Government is hiding behind an excuse. Every time the Government touches the Megrahi case, it seems to do something wrong and to move the goalposts.

I support my colleague Bill Butler's suggestions. We should see whether we can get responses before the next session.

I note the length of time that the Government took to respond to our previous letter on a Megrahi inquiry. I know that the convener has written to the First Minister about that. I am sure that a whole load of civil servants are familiar with every detail of the Megrahi case and could put their hands quickly to writing the response that we will request.

I do not know whether the clerk or the convener will write the further letter to the Government, but I suggest that we ask for a quick response, because we want to deal with the petition in this session.

Nigel Don: Once we have a response from the Government, there is little prospect that another response will be different, but banging on the door will do no harm. It occurs to me that—as far as I can recall—we have not yet written to the Lord Advocate. As the senior independent law officer, does she have from somewhere in the mists of time residual powers to investigate this, that and the other? That might be clutching at straws, but it is one sack of straws that we need to consider. Do the law officers have a residual power to investigate or reconsider a case in such circumstances? I would not even define the circumstances; we should just ask the Lord Advocate to think about what she might be able to do.

Robin Harper: Considering that the petition is extremely limited—it asks us

"to urge the Scottish Government to open an independent inquiry"—

and that we have been told at least twice that the Government has no intention of so doing, we have every right to close the petition. However, I have listened to Christine Grahame's arguments and I feel that, for the petitioners' sake, it is worth writing to ask the SCCRC for its opinion, which can be forwarded to the Government for a response. As it is seven weeks to dissolution, that process is extremely unlikely to be completed before dissolution, so we must think of the matter as part of our legacy to the next session's Public Petitions Committee.

The Convener: Do we agree to continue the petition in those terms?

Members indicated agreement.

Scottish Parliament hears Petition 1370 by “Justice for Megrahi” group calling for inquiry into Camp Zeist conviction of Lockerbie Bomber

TUESDAY of this week at the Scottish Parliament’s Petitions Committee saw the “Justice for Megrahi” group attend Holyrood, to give evidence on Petition PE1370, raised by Dr Jim Swire, Professor Robert Black QC, Mr Robert Forrester, Father Patrick Keegans and Mr Iain McKie on behalf of 'Justice for Megrahi', calling on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.

The Committee took evidence from Dr Jim Swire, Professor Robert Black QC, Mr Robert Forrester, Father Patrick Keegans and Mr Iain McKie and agreed to write to the Scottish Government seeking responses to points raised in the petition and during the discussion.

The Petition can be viewed here : Petition PE1370, Direct link to Petition 1370, Scottish Parlaiment SPICe Briefing

Video footage of Petition 1370 Justice for Megrahi calling for inquiry into conviction of Lockerbie Bomber (click images below to view)

The Scottish Parliament has since published its written questions to the Scottish Government after taking evidence from the campaign group :

Written Questions for Petition 1370

PUBLIC PETITIONS COMMITTEE CONSIDERATION OF PE1370:
QUESTIONS ARISING FROM COMMITTEE MEETINGS
(See ‘Written submissions’ for responses)

TUESDAY 9 NOVEMBER 2010—

Scottish Government

• Will you open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988 as called for by the petitioner and for the reasons given in the petition?
  
• If not, will you provide a detailed explanation why not, specifying whether there is any legislation which would prevent you from holding such an inquiry, what this legislation is and how it prevents?
  
• Who would have the power to undertake an inquiry in the terms proposed in the petition?