During its four-year investigation, as well as finding six grounds why Megrahi may have suffered a miscarriage of justice, the Scottish Criminal Cases Review Commission examined numerous other issues which, according to his lawyers, affected the safety of his conviction.
The 821-page report contains full details of these investigations and the Commission’s conclusions. It makes fascinating and occasionally surprising reading.
The Libyan informant
A key witness against Megrahi was a former Libyan Arab Airlines colleague, Majid Giaka, who was also a junior intelligence officer and CIA informant. At trial the defence were provided with partially redacted CIA cables about him.
After two of the Crown team had viewed almost complete cables on 1 June 2000, the Lord Advocate assured the court that the blanked out sections were of no relevance.
However, when less redacted versions were eventually released they cast further doubt on Giaka’s credibility. In their application to the SCCRC, Megrahi’s lawyers, who were not those who represented him at trial, argued that the failure to release the full, unredacted cables breached Megrahi’s right to a fair trial.
Remarkably, the SCCRC was not allowed to view the full cables, but having read the partially redacted ones, it commented:
it is difficult to understand the Lord Advocate’s assurances to the court on 22 August 2000 that there was “nothing within these documents which relate to Lockerbie or the bombing of Pan Am 103 which could in any way impinge on the credibility of Mr Majid on these matters”. The matter is all the more serious given that part of the reason for viewing the cables on 1 June 2000 was precisely in order to assess whether information behind the redacted sections reflected upon Majid’s credibility
The SCCRC nevertheless concluded that the failure to release the full cables had not resulted in a miscarriage of justice. Twenty-two years on, Giaka’s full story remains unknown.
The terrorist whistleblower
Six months into Megrahi’s trial the Crown disclosed a transcript of a lengthy deathbed confession by Palestinian self-confessed terrorist Mobdi Goben. He claimed that the bombing was the work of his own group, Popular Front for the Liberation of Palestine – General Command (PFLP-GC), a Syrian and Iranian backed faction who were the original prime suspects in the bombing.
The defence interviewed a number of Goben’s relatives and associates who were seeking asylum in Norway, plus a man whom Goben had implicated in the bomb plot.
However, the court refused a defence motion to request further information from the Syrian, Iranian, American and Swedish governments, and the allegations were never raised at trial. Megrahi’s SCCRC submission argued that the Crown’s approach to the matter breached his right to a fair trial.
The SCCRC raised the matter with Megrahi’s junior counsel John Beckett, who said that the Goben evidence would have been difficult to use. It also had access to undisclosed Crown documents, which, in its view, contained nothing the defence didn’t already know. It concluded:
the Commission does not consider that the Crown’s handling of matters concerning the Goben memorandum gave rise to a breach of the Crown’s obligations … Accordingly, the Commission does not consider that a miscarriage of justice may have occurred in this connection.
Goben’s claims remain unproven, but many who have studied the case, including the British Lockerbie relative Dr Jim Swire, continue to hold the PFLP-GC responsible for Lockerbie.
Prime suspect No.1: Abu Elias
Mobdi Goben and PFLP-GC member, bomb-maker Marwan Khreesat, each implicated another of group member, known as Abu Elias, in the bombing.
Khreesat was arrested by the German police two months before Lockerbie and admitted building five bombs designed to blow up aircraft.
He told the police that Abu Elias had recently arrived in Germany and was an airline security expert, but Elias evaded capture along with at least one of Khreesat’s bombs.
A number of Megrahi’s unsuccessful submissions to the SCCRC referred to Abu Elias. Although the Commission could find no direct evidence of his involvement in the bombing, Abu Elias remains the prime suspect for many of those who doubt Megrahi’s guilt.
Prime suspect No.2: Abu Talb
The most unusual Crown witness at Megrahi’s trial was convicted terrorist Mohamed Abu Talb, who was serving a life sentence in Sweden for fatal bombings in Northern Europe in the mid-Eighties.
Previously a prime suspect in the Lockerbie bombing, he had visited Malta two months before Lockerbie, returning with clothes, and some of his associates had visited the German flat in which the PFLP-GC’s Marwan Khreesat made barometric bombs.
When Megrahi became a suspect the trail to Abu Talb went cold and by calling him as a witness the Crown attempted to demonstrate that he could not have been responsible for Lockerbie.
The SCCRC uncovered no significant new evidence about Abu Talb, but was unable to properly investigate an airline ticket, which suggested that he possibly made a second trip to Malta at around the time that Tony Gauci said he sold the bomb suitcase clothing.
The report says:
There is no smoking gun to implicate Abu Talb, but his trip to Malta and his PFLP-GC connections continue to fuel suspicions of his involvement in Lockerbie.
The Commission requested that D&G (Dumfries and Galloway Police) ask the police officers involved in enquiries relative to Abo Talb whether they had established that the position in respect of the return portion of the ticket. D&G confirmed in a letter dated 19 April 2006 that none of the officers could recall making enquiries in this connection … In the Commission’s view, although it is regrettable that the matter was not checked with Scandinavian Airlines at the time of the police investigation, there was no failure by the Crown to disclose material evidence about the return portion of Talb’s flight ticket. The shopkeeper
Maltese shopkeeper Tony Gauci was the key witness against Megrahi, as it was he who sold the clothes that were supposedly packed into the bomb suitcase. In 1991 he made a tentative identification of Megrahi, which he repeated at an ID parade 8 years later and again during his trial evidence.
Although four of the SCCRC grounds of referral concerned Gauci, the Commission rejected a number of submissions contained in Megrahi’s original application. Among these was the claim that Gauci had been taken to Scotland by the police, where he received treats and hospitality, which may have influenced his evidence.
The Commission confirmed that Gauci was taken to Scotland on a number of occasions, but considered that nothing improper had taken place. It says:
… almost all of Mr Gauci’s visits to Scotland took place after he had given evidence. The only exception to this is his visit in 1999 when he attended Dumfries for precognition and was taken sight-seeing in Edinburgh the following day. However, in the Commission’s view any possible significance that might have been attached to this by the defence has to be seen in light of the other information contained in the reports described above. It appears from this that far from viewing his visits to Scotland and elsewhere as an incentive Mr Gauci was strongly opposed to his removal from Malta which he regarded as a source of inconvenience.
Large question marks remain over Gauci’s evidence. The SCCRC discovered that post-trial he received a reward of at least $2 million from the US Department of Justice.
The CIA agent
The only US investigator interviewed by the SCCRC, former CIA agent Robert Baer, reported intelligence indicating that the Iranian government had commissioned the PFLP-GC to bomb Pan Am 103. His sources suggested that two days after the bombing $11 million was transferred into a PFLP-GC Swiss bank account and a few months later $500,000 was paid into an account thought to belong to Abu Talb at the Degussa Bank in Frankfurt.
Overall, the SCCRC concluded:
… the Commission has no reason to doubt [Mr Baer’s] credibility. However, as he himself acknowledged, he has no direct knowledge of any of the information in his possession, which came largely from CIA telexes. As with all intelligence, the
validity of that information was very much dependent upon the reliability of its source which in many cases Mr Baer was unable to vouch.
The Baer chapter demonstrates the limited reach of the SCCRC’s inquiry and is probably the report’s most disappointing.
The Golfer was the cover name of a police officer who told Megrahi’s then legal team that key items of evidence had been manipulated to fit the prosecution case.
Subsequent submissions to the SCCRC by the lawyers, MacKechnie & Associates, highlighted anomalies in police documentation, which appeared to support these claims.
The Commission spent a long time investigating the allegations, and interviewed the Golfer three times, but found nothing to substantiate the claims. His accounts proved to be erratic and, according to the report, on one occasion he ‘telephoned a member of the enquiry team from a bar, apparently under the influence of alcohol.’ The Commission did not consider the documentary anomalies to be sinister:
while some of the allegations made in the submissions were based upon information said to have been provided by the Golfer, others were based purely on perceived irregularities in the recorded chain of evidence. The Commission’s approach to the latter was that in any police enquiry, let alone one as large scale and complex as the present one, human error is inevitable. Although apparent omissions, inconsistencies or mistakes in productions records may, after a long period of time, appear difficult to explain, or even suspicious, in the Commission’s view they do not, in themselves, support allegations of impropriety against those involved in the investigation.
The police will be relieved by the report’s conclusions. That relief won’t be shared by the Crown Office, which the SCCRC has left with some important questions to answer.
The defence lawyers
Megrahi’s application to the SCCRC argued that the approach of his original defence team had contributed to his wrongful conviction and the failure of his first appeal in 2002. The allegations are described as ‘wide-ranging and cover failures both to prepare and present the defence and to advance legal argument or assert “legal rights” on behalf of the applicant.’ The legal test to be applied was whether the conduct of the defence had been ‘contrary to the promptings of good reason and sense’.
In interviews with the SCCRC Megrahi’s fomer solicitor Alastair Duff, leading counsel Bill Taylor QC and junior counsel John Beckett, all robustly defended their handling of the case. The report concludes:
In the Commission’s view there is nothing in the submissions under this
heading, or in the accounts given by the former representatives at interview, which supports the submission that the conduct of the defence was such as to deny the applicant a fair trial. Accordingly the Commission does not consider that a miscarriage of justice may have occurred in this connection.
Overturning Megrahi’s conviction on the grounds of defective representation was always going to be difficult.
Before referring Megrahi’s conviction to the appeal court, the SCCRC had to be satisfied that, regardless of the weaknesses in the Crown case, there was not overwhelming evidence of his guilt.
In practice this meant exploring the issues that would have been raised during cross-examination, if he had opted to give evidence.
These included his relationship with the JSO, his use of a false passport, large payments into his Swiss bank account and lies he had told in a US television interview. The Commission conducted lengthy interviews with Megrahi and studied 37 of his precognition statements.
The report says:
while at no time did the applicant admit that he was a “member” of [the JSO], in the Commission’s view he was so closely associated with it as to amount to the same thing … It is important to bear in mind in any assessment of the applicant’s accounts that each of them was given in English rather than in his native tongue. It is obvious … that on occasions the applicant had difficulty expressing himself clearly. Caution is therefore required in analysing his accounts … On the other hand, the applicant speaks English relatively well, having previously studied the subject in Cardiff, and he did not request the assistance of an interpreter at any stage in his interview with the Commission. In these circumstances the Commission does not consider the inconsistencies in his accounts are merely the result of communication difficulties … In particular, the Commission believes that there was a real risk that the trial court would have viewed his explanations for his movements on 20 and 21 December 1988, and his use of the [false] Abdusamad passport on that occasion, as weak or unconvincing.
The Commission has also considered whether, notwithstanding its conclusion that a miscarriage of justice may have occurred, the entirety of the evidence considered by it points irrefutably to the applicant’s guilt. The Commission’s conclusion is that it does not.
Megrahi insists that he had nothing to hide from the SCCRC and that the inconsistencies in his accounts are all innocent. While he disputes some of its conclusions he has made clear that he is happy for them to be made public.
John Ashton, author of Megrahi: You Are My Jury, and Lucy Adams, The Herald's chief reporter, will appear at the Aye Write! festival today (Wednesday, March 14) at 6pm, to discuss the book. To find out more and book tickets, go to www.ayewrite.com