Longer analysis piece for Herald online

The Herald has just published online this analysis piece by me, which expands upon the article published earlier today on the SCCRC’s six grounds of referral.

 

Its language is sober, often ponderous and sometimes legalistic, but its effect is devastating.

Over the course of 821 pages, the Scottish Criminal Cases Review Commission’s statement of reasons on the case of Abdelbaset al-Megrahi potentially exposes the Scottish criminal justice system – and the Crown Office in particular – to one of the greatest humiliations it has ever faced.

During its four-year investigation the Commission uncovered numerous items of important evidence that cast doubt on Megrahi’s conviction, which the Crown Office had failed to disclose to Megrahi’s lawyers during his trial in 2000-1.

In some cases the Crown Office could explain the failure and in others it claimed to be unaware of the evidence – either way, the failures, while not deliberate, appear to be systematic.

In the SCCRC’s view, the non-disclosure provided four separate grounds for referring Megrahi’s conviction back to the appeal court. They also found two other grounds for referral.

Many observers believe the Libyan’s decision to abandon that appeal, in order to increase his chances of being allowed to return home, averted a major crisis for the Crown Office.

In the two and a half years since then, most of the public debate around the case has focused on the rights and wrongs of Justice Secretary Kenny MacAskill’s decision to grant Britain’s supposed worst mass murderer compassionate release. Publication of the report’s key findings today is bound to turn the spotlight on the Crown Office.

The relatives of the British Lockerbie relatives are angry that successive Scottish governments have refused their calls for a public inquiry into Megrahi’s conviction. The latest revelations could make their case unarguable. 

The case against Megrahi

The Crown case, accepted by the three law lords who tried Megrahi, was that on the morning of 21 December 1988, he smuggled an unaccompanied suitcase containing a bomb onto Air Malta flight KM180 from Malta to Frankfurt,  Germany. There the case was transferred to a Pan Am feeder flight to Heathrow, where it was loaded on to Pan Am flight 103.

The suitcase contained clothes, which he was alleged to have bought from a small shop in Sliema, Malta called Mary’s House, when he visited the island on 7 December 1988.

British forensic experts had found bomb-damaged clothing fragments, which the police were able to trace to the shop. The shopkeeper, Tony Gauci, recalled selling a collection of similar clothes to a Libyan man in a few weeks before the bombing.

More than two years after the bombing he picked Megrahi from a photo line-up, telling police he resembled the purchaser. In 1999, after Megrahi had surrendered for trial, Gauci again picked him out, this time from a live identity parade.

The other key plank of the case was a tiny fragment of circuit board found within one of the Maltese clothing fragments. Forensic analysis indicated that it was from a timer called an MST-13, which had been designed and built by a small Swiss company called Mebo.

Its boss, Edwin Bollier, said he had supplied 20 of the timers to the Libyan intelligence service, the JSO. The company also rented part of its Zurich office to a Libyan company, ABH, in which Megrahi was a partner.

However, the judges recognised that there were weaknesses in the Crown case. In particular Air Malta’s strict baggage procedures would have made it very difficult to put an unaccompanied suitcase onto the Frankfurt-bound flight.

Tony Gauci’s identification was also problematic. He consistently described the clothes purchaser as around 50 years-old, six feet tall, well built and dark-skinned, whereas Megrahi was 36, five feet eight inches, slightly built and light-skinned.  Gauci also maintained that it was raining as the customer left the shop, but weather showed there was not rain on 7 December, which was Megrahi’s only window of opportunity.

The six grounds of referral by the SCCRC

1. Unreasonable verdict

The trial judges were satisfied that the purchase of the primary suitcase clothing was on 7 December 1988, which was Megrahi’s only window of opportunity. If the clothes were bought on any other date, Megrahi could not have been convicted. Gauci was clear that it was raining as the man was leaving the shop, yet the court heard from Malta’s chief meteorologist that no rainfall was recorded that day.  In the SCCRC’s view this rendered the judgment unreasonable.

Extract (para. 18.204 & 21.96)

The Commission has reached the view that the trial court’s verdict is at least arguably one which no reasonable court, properly directed, could have returned. In particular the Commission does not consider there to be any reasonable basis for the trial court’s conclusion that the purchase took place on 7 December 1988 and therefore for the inference it drew that the applicant was the purchaser of the items from Mary’s House … Although the weather evidence did not necessarily exclude 7 December as the date of purchase, in any choice between that date and 23 November it strongly favoured the latter.

2. Undisclosed evidence concerning the Gauci identification

Days after Megrahi surrendered for trial in April, the Maltese shopkeeper Tony Gauci picked him out at an identity parade.  One of Gauci’s neighbours had earlier shown him a magazine article, which contained a photograph of Megrahi under the heading Who planted the bomb? The SCCRC discovered a statement by Maltese officer Sergeant Mario Busuttil, which showed that Gauci had kept the article for a few months and had only handed it to the police a few days before the ID parade. It also uncovered a police report, which revealed that Gauci had seen other articles containing Megrahi’s photograph a few weeks before the ID parade. The SCCRC concluded that exposure to these images could have prejudiced the identification procedure.

Extract (paras 22.32, 22.64, 22.67 & 22.84)

By letter dated 8 March 2007 Crown Office confirmed to the Commission that this report was not disclosed to the defence. It was explained in the letter that Crown Office has no record of the document in its files but that Mr Brisbane, now Deputy Crown Agent, was confident that as a member of the joint police and prosecution investigation team in Malta in early 1999 he would have been made aware of the information it contained whereas the evidence at trial perhaps gives the impression that the magazine was in Mr Gauci’s possession only fleetingly, in terms of Sergeant Busuttil’s statement the period seems to have been of the order of four months. During that time Mr Gauci appears to have kept the magazine at his home where he would have been free to view the contents of the article, including the applicant’s photograph, as and when he wished. Critically, Mr Gauci’s possession of the magazine, and therefore his potential exposure to the applicant’s photograph, came to an end, not months before the identification parade as the evidence at trial perhaps tends to convey, but on 9 April 1999, a matter of only four days … (In) the circumstances it is difficult to avoid the conclusion that Mr Gauci would also have been aware that the applicant was to be present on the identification parade. If that is true, then no matter what attempts were made to select stand-ins of similar appearance there was a substantial risk that the applicant would be instantly recognisable to Mr Gauci, not from any genuine memory of the purchaser, but rather as a result of his exposure to photographs of the applicant in the media and, in particular, to the one he saw only four days previously the Commission is of the view that Sergeant Busuttil’s police statement and the report of 20 March 1999 should have been disclosed to the defence. Both items were likely to have been of material assistance in the proper preparation or presentation of the applicant’s defence and to have been of real importance in undermining of the Crown case.

3. Undisclosed evidence concerning the date of the clothes purchase

At trial Gauci said the clothes were purchased around a fortnight before Christmas, which was consistent with the time Megrahi was on the island. However, when interviewed by the defence he said he thought the date might be 29 November, although, crucially, he said he didn’t know why. The SCCRC discovered an undisclosed Crown precognition statement in which he repeated the 29 November claim, but added that he believed this might be the date, because he recalled having a row with his girlfriend.

Extract (para 24.78, 24.99 & 24.108):

By letter dated 24 August 2006 Crown Office confirmed to the Commission that the contents of Mr Gauci’s Crown precognition were not disclosed to the defence. According to the letter this was consistent with the Crown’s practice at the timeThe Crown’s position throughout its preparation and presentation of the case was that the items were purchased from Mr Gauci on 7 December 1988, a date on which there was evidence that the applicant was not only in Malta but staying at a hotel close to Mary’s House. Indeed, had the court concluded that the purchase had taken place on some other date in November or December 1988 this would effectively have eliminated the applicant as the purchaser since, on the evidence, it was only on 7 December that he would have had the opportunity to buy the items. Viewed in that context, information from Mr Gauci not only that the purchase might have taken place on 29 November 1988 but that he had an argument with his girlfriend that day, is of obvious significance to the defence. While Mr Gauci’s final position in the precognition might cast doubt upon the reliability of that recollection, in the Commission’s view this did not relieve the Crown of its duty to disclose the information contained in the passage the passage in Mr Gauci’s Crown precognition might have played a useful part in the preparation and presentation of the defence case in that it would have assisted in challenging Mr Gauci’s evidence that the purchase took place about a fortnight before Christmas and in undermining the date of purchase advanced by the Crown. In the Commission’s view by withholding this information the Crown deprived the defence of the opportunity to take such steps as it might have deemed necessary.

4. Undisclosed evidence concerning Gauci’s interests in rewards

The SCCRC discovered three police documents that indicated that, before first picking out Megrahi from a photo line-up in 1991, Gauci was aware that a substantial reward was on offer from the US government and had “expressed an interest in receiving money”.  One of the documents, from June 1999, described him as being “somewhat frustrated that he will not be compensated in any financial way for his contribution to the case” and said his influential brother Paul “has a clear desire to gain financial benefit from the position he and his brother are in relative to the case”.

Extract (para 23.3, 23.19, 23.62 & 23.64):

By letter dated 8 March 2007 Crown Office confirmed to the Commission that Mr Bell’s memorandum of 21 February 1991 was not disclosed to the defence. According to the letter, Crown Office has no record of this document in its files and no one there who dealt with this part of the case has any recollection of having seen it before. By letter dated 16 February 2007 Crown Office confirmed that the report by Strathclyde Police dated 10 June 1999 was also not disclosed to the defence. In terms of a further letter dated 27 April 2007 Crown Office explained that although a copy of the report could not be found in its files, given its nature the possibility could not be excluded that a copy was made available to them at the time or that they were made aware of its contents. As Mr Bell’s memorandum of 14 June 1991 is only significant when seen in the context of his earlier memorandum, in the Commission’s view there would have been no reason to disclose this in isolation …Enquiries with D&G (Dumfries and Galloway Police) have established that, some time after the conclusion of the applicant’s appeal against conviction, Anthony and Paul Gauci were each paid sums of money under the “Rewards for Justice””programme administered by the US Department of State. Under that programme the US Secretary of State was initially authorised to offer rewards of up to $5m for information leading to the arrest or conviction of persons involved in acts of terrorism against US persons or property worldwide. The upper limit on such payments was increased by legislation passed in the US in 2001 … the Commission is of the view that Mr Bell’s memoranda and the passages from Strathclyde Police report quoted above ought to have been disclosed to the defence. Taken together, all three items were likely to have been of material assistance to the proper preparation or presentation of the applicant’s defence and were likely to have been of real importance in undermining the Crown case … In referring the case on this ground the Commission is conscious of the potential impact of its decision upon Mr Gauci who may well have given entirely credible evidence notwithstanding an alleged interest in financial payment. On the other hand there are sound reasons to believe that the information in question would have been used by the defence as a means of challenging his credibility. 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.

5. Undisclosed secret intelligence documents

In 2006 the Crown informed the SCCRC of two classified documents in its possession. SCCRC investigators were permitted to view the items and take notes, but those notes were left in the possession of the police. The SCCRC concluded that the non-disclosure of one of the documents indicated that a miscarriage of justice may have occurred. The SCCRC was not allowed to reveal the documents’ contents, which remain unknown.

Extract (paras 25.3 to 25.5 & 25.7 to 25.8)

By letter dated 27 April 2007 Crown Office confirmed that neither of the protectively marked documents was disclosed to the defence. According to Crown Office’s letter, “[the] documents were considered carefully by the Crown for the purposes of disclosure and the conclusion was reached that the documents did not require to be disclosed in terms of the Crown’s obligations.”.It was also pointed out in the letter that “it has never been the Crown’s position in this case that the MST-13 timers were not supplied by the Libyan intelligence services to any other party or that only the Libyan intelligence services were in possession of the timers”. Crown Office also confirmed to the Commission that neither they nor the police had carried out further enquiries or recovered any further information in connection with information contained in one of the protectively marked documents. On 29 March 2007 the Commission sought the consent of Crown Office and D&G to disclose the documents under the minute of agreement. On 27 April 2007 the Commission was informed by Crown Office that such consent could not be given without the permission of the relevant authorities of the country from which the documents originated. Although attempts were made on behalf of Crown Office to obtain the consent of those authorities, as at the date of issue of the Commission’s statement of reasons this had not been given … In any other circumstances the Commission would have explored in detail its reasons for referring the case on this basis. However, in light of the restrictions placed upon its disclosure of the items it is unable to do so. The Commission considered applying to the court for an order under section 194I of the Act requiring Crown Office to produce the documents. However, given the need to finalise the review, and the fact that other grounds of referral had been identified, the decision was taken not to do so.

6. New evidence concerning the date of clothes purchase

In his police statements Tony Gauci was clear that the purchase had taken place around the time the municipal Christmas lights had been put up in the street outside. At the time of the trial no one had been able to establish when this was, but evidence had emerged since then, which demonstrated that it was well before 7 December when Megrahi was in Malta. The key document was a diary belonging to Maltese tourism minister Michael Refalo, which showed that he switched on the lights on 6 December.   

Extract (paras 24.66 & 24.76)

…if the purchase was “about the time when the lights would be going up” then in terms of Dr Refalo’s diary the date is unlikely to have been 7 December 1988 as by that time the lights were illuminated. Given that on the evidence led at trial 7 December 1988 is the only date on which the applicant would have had the opportunity to purchase the items, it follows that Dr Refalo’s account is capable of undermining the court’s conclusion that the applicant was the purchaser … the Commission considers that Dr Refalo’s account is capable of being considered as credible and reliable by a reasonable court, and is likely to have had a material part to play in the determination by such a court of a critical issue at trial, namely the date on which the items were purchased from Mary’s House.

John Ashton, author of Megrahi: You Are My Jury, and Lucy Adams, the Herald’s chief reporter, will appear at the Aye Write! festival tomorrow (Wednesday, March 14) at 7pm [actually 6pm], to discuss the book. To find out more and book tickets, go to www.ayewrite.com

 

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