A DAMNING secret report has revealed the flawed handling of the Lockerbie case by Scottish prosecutors and the key documents not disclosed to the defence team which could have cleared the Libyan convicted of the atrocity.
The full 821-page Scottish Criminal Cases Review Commission (SCCRC) dossier, which has been seen by The Herald, uncovers serious discrepancies in the Crown Office's reasons for not disclosing vital information.
The Herald can reveal the commission – whose job it is to review cases post-appeal and investigate whether a miscarriage of justice may have occurred – even wrote to the Crown warning it would take legal action if the prosecution did not hand over important documents and speed up information sharing.
The SCCRC rejected many of the defence team's submissions but upheld six different grounds which could have constituted a miscarriage of justice.
The Crown failed to disclose seven key items of evidence that led to the Lockerbie case being referred back for a fresh appeal.
The SCCRC made clear that, had such information been shared with the defence, the result of the trial could have been different.
Its full report details why the conviction of Abdelbaset Ali Mohmed al Megrahi was referred for a second appeal.
The Scottish Government says it wants to release the document in the interests of transparency but cannot do so because it is covered by data protection law, which is reserved to Westminster.
The report reveals failings on the part of the Crown and shows it delayed the SCCRC by responding very slowly to requests for documents. In several cases the SCCRC was told items had gone missing or there was no record of them.
Three of the undisclosed documents related to payments of around $3 million (£1.9m) made by the US Justice Department to Paul and Tony Gauci – key witnesses in the Crown's case.
Tony Gauci claimed Megrahi bought clothes in his Malta shop, which were later found to be in the suitcase that contained the bomb which killed 270 in December 1988. His identification of Megrahi was critical to the prosecution case.
However, the defence did not know he had been offered and paid reward money after Megrahi's appeal failed in 2002.. If Megrahi's legal team had been made aware of the payments they could have challenged the credibility of the prosecution case. In its report the SCCRC says: "Such a challenge may well have been justified, and in the commission's view was capable of affecting the course of the evidence and the eventual outcome of the trial."
The Crown was unable to adequately explain why a memorandum by Scottish police officer Harry Bell referring to reward money was not disclosed. The Crown claimed a 1998 High Court case, which set a precedent for disclosing important information to a defence, barred disclosure.
This has since been challenged at the UK Supreme Court and even greater disclosure is now required.
The commission also found Mr Gauci had a magazine with a photograph of Megrahi stating he was the Lockerbie bomber three days before he identified him at an identification parade in Holland.
In 2001 the Scottish court sitting at Camp Zeist in the Netherlands convicted Megrahi of murder. A second accused, Lamin Khalifah Fhimah, was acquitted.
Robert Black, QC, one of the architects of the Camp Zeist trial, said: "I don't think there could possibly have been a guilty verdict if the Crown had disclosed to the defence all the material they had in their possession and they were obliged to disclose, even as the law on disclosure stood in 2000/01.
"Why didn't the Crown disclose? Was it because they convinced themselves getting a guilty verdict was more important than obeying 'technical' rules – after all, this was a terrorism case?
"The law about disclosure was clarified after the Zeist trial. But even in 2000/01 the law as it stood would have required the Crown to disclose all the material they withheld. I am delighted The Herald is unveiling this information."
A Crown Office spokesman said last night: "We note the Commission reported delays in obtaining materials from the Crown but also accepted that the Crown's responses to requests were often detailed and helpful in this uniquely large and complex case."
He added: "Mr Megrahi was convicted unanimously by three senior judges following trial during which the evidence was rigorously tested and his conviction was upheld unanimously by five judges, in an appeal court presided over by the Lord Justice General."
Why the SCCRC report has not been officially published
When the SCCRC referred the Lockerbie case back for a fresh appeal in June 2007 they were only able to publish a summary of their findings.
At that stage if they had published the full report they could have been prosecuted. Legally their hands were tied.
In an effort to get the report published, the Scottish Government passed a statutory instrument, which meant it would no longer be a criminal act for the SCCRC to publish such reports.
However, the 821-page document was still bound by Freedom of Information and Data Protection legislation.
The commission wrote to the individuals mentioned in the report asking for their consent for publication. Consent was not given.
Abdelbaset Ali Mohmed al Megrahi said he would agree if the Crown did. Ultimately, however, the Crown did not.
To try to get the report into the public domain, ministers brought forward legislation to ease publication. This should be enacted in May but because of the status of the SCCRC, they are still bound by Data Protection legislation.
Justice Secretary Kenny MacAskill has written to UK Justice Secretary Ken Clarke to ask for an exemption under Data Protection.
The Herald is the first newspaper to have had access to the report. Five years on it is finally closer to being aired.
Extracts and analysis