Promotions for prosecutors involved in CIA Giaka cables scandal

[What follows is the text of an item posted on TheLockerbieTrial.com on this date in 2000:]

The Lord Advocate [Colin Boyd QC] announced on Monday [9 October 2000] that Alan Turnbull QC, one of the senior Crown counsel at the Lockerbie trial, was being promoted to Home Advocate Depute. [RB: The Home AD was the most senior prosecutor in the Crown Office after the Lord Advocate and the Solicitor General for Scotland.]

The announcement has come as a surprise to many including Turnbull himself, who has of late been keeping a very low profile at the Camp Zeist trial.

Turnbull's low profile in the courtroom has had a good deal to do with the results of his trips to the CIA "reading room" at the US Embassy in The Hague.

Accompanied by Senior Procurator Fiscal Norman McFadyen, Turnbull read through the secret text of numerous CIA documents.

Presumably both he and McFadyen decided that what was hidden behind the redacted versions of the CIA cables and shown to them was not relevant to the defence case or that it did not undermine the Crown case.

Subsequent events in court have shown that the text that lay behind the redacted cables was highly relevant to the defence. What compounded the problems for the prosecution was that Turnbull and McFadyen, knowing now what lay behind the some of the redactions, must also have known that the notations written along side the redacted areas which were supposed to describe in general terms what was hidden, turned out to be utterly misleading and bogus.

These notations were obviously designed to throw any interested party off the track of what really lay behind the blacked out sections of the cables.

Turnbull clearly was clearly involved in this exercise in preparation for the Crown's examination of the Libyan informer Giaka but that task fell to Advocate Depute Campbell and Turnbull took a back seat.

Turnbull and McFadyen, both highly experienced prosecutors, must have been aware that allowing this deception to go forward could be damaging to the Crown's relationship to the court, leaving aside the legalities and ethical consideration of their actions.

Sources close to the trial have told us that Alastair Campbell QC, was very concerned about this and was not prepared to allow this situation to go unresolved and his actions ensured that the defence was informed.

That Turnbull and McFadyen stayed silent on these matters for so long is a real cause for concern. We do know that they had to sign confidentiality documents before the CIA would allow them to see material and one could fairly ask if they had any authority to do so, bearing in mind the Crown's responsibility to the Court. What form of undertaking Turnbull and McFadyen gave the CIA should be made public. 

Given the background to these events, the timing of the announcement of Turnbull's promotion caused surprise in many quarters.

Informed sources have told us that that there are several members of the legal profession considering lodging formal complaints with the Faculty of Advocates and the Law Society of Scotland regarding the conduct of Alan Turnbull and Norman McFadyen in relation to the CIA cables. 

[RB: In March 2003 there was also promotion for Norman McFadyen. He became Crown Agent, the civil service head of the Crown Office and Procurator Fiscal Service. These two promotions tellingly illustrate just how seriously Lord Advocate Boyd took the Crown’s shameful behaviour over the CIA Giaka cables.

All four of the prosecution lawyers mentioned above are now judges in Scotland.]

Crown Agent appointed sheriff

Crown Agent Norman McFadyen, who led the Crown's discredited investigation into the Lockerbie case, has been praised by Lord Advocate Elish Angiolini as he steps down to take up appointment as Sheriff. [RB: A sheriff in Scotland is a local judge, one tier down from the High Court of Justiciary (criminal) and the Court of Session (civil).]

McFadyen, who was investigated by Lothian and Borders CID in 2009 when he was reported by MSP Christine Grahame over concerns about his handling of crucial evidence, was praised by Angiolini for his "great professionalism and integrity" in his handling of the case.

After three weeks investigation, no charges were brought against him.

Earlier this month the Crown Office also attacked the BBC over a Newsnight investigation which challenged the explosives evidence offered by the Crown at the Zeist trial of Abdelbaset Ali Mohmed Al Megrahi.

"Norman McFadyen is an outstanding lawyer with a long and very distinguished career with Scotland's prosecution service," Angiolini said.

"He has served in a variety of senior posts before his appointment as Crown Agent and Chief Executive. These included Regional Procurator Fiscal for Lothian and Borders and Deputy Crown Agent. He also led the investigation into the Lockerbie bombing with great professionalism and integrity.

"Norman McFadyen has been an immense support to successive Law Officers over the years and he has played a key role in the modernisation of the Crown Office and Procurator Fiscal Service."

[The above report comes from the website of Scottish lawyers' magazine The Firm. The Crown Agent is the civil service head of the Crown Office and Procurator Fiscal Service, the Scottish rough equivalent of the English Crown Prosecution Service. Mr McFadyen was promoted to the top job after the Lockerbie trial.]

Former Lord Advocate ... seriously misled the Megrahi Court claims book author

[This is the headline over a report published today on the Newsnet Scotland website.  It reads in part:]

Former Lord Advocate, Colin Boyd QC, has been accused of misleading the Court during the trial of Abdelbaset al-Megrahi.

The claim, contained in the book Megrahi – You are my Jury, relates to the QC’s intervention in a matter involving secret CIA cables that contained details of discussions between the US agency and a Libyan ‘supergrass’ named Majid Giaka.

Giaka was a former work colleague of Mr Megrahi who had contacted the CIA claiming to have evidence linking the Libyan and his co-accused Al Amin Khalifa Fhima to the Lockerbie bombing.

Giaka was scheduled to give evidence to the Court in August 2000, but was delayed due to legal wrangling over the telex cables.

Demands by the Libyan’s defence team to see the cables in full led to the intervention by then Lord Advocate Colin Boyd, an episode described by book author John Ashton as “one of the most disgraceful episodes in the Crown Office’s recent history”.

Mr Megrahi’s defence team had requested full disclosure of the secret cables which had been heavily redacted for apparent security reasons.

Lawyers acting on behalf of the two Libyan’s were informed that the twenty five cables were all that existed and that the redacted areas covered general areas not relevant to the Lockerbie incident.

According to the book, Procurator Fiscal Norman McFadyen claimed that no-one from the Crown had seen the unedited cables and that the redacted material was irrelevant.

However it subsequently emerged that weeks earlier on 1st June 2000, members of the Crown Office had indeed seen the unedited cables, one of whom was Norman McFadyen and the other Alan Turnbull QC.

On 22 August on learning of this, Mr Megrahi’s legal team raised the issue with the Court, describing it as “a matter of some considerable importance”.

According to Ashton’s book, Bill Taylor QC argued that without access to the full cables, the defendants would be denied a fair trial, and said: “I emphatically do not accept that what lies behind the blanked out sections is of no interest to a cross examiner … Further, I challenge the right of the Crown to determine for the defence what is or is not of relevance to the defence case.”

Mr Taylor urged the Court to ask the Crown to obtain the complete copies of the cables from the CIA.

In a move, described as unusual by author John Ashcroft, Lord Advocate Colin Boyd then attended the Court in person and admitted that McFadyen and Turnbull had indeed seen the cables but repeated the Crown’s earlier assertions that the redacted areas had no bearing on the cables themselves or the case.

“While they may have been of significance to the Central Intelligence Agency, they had no significance whatsoever to the case” he said.

Mr Boyd explained that according to Crown QC Alan Turnbull: “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 case.”

Mr Boyd also explained that he had no control over the documents that they resided in the USA under the control of US authorities.

Boyd ended by stating categorically: “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 Mr Majid [Giaka] on these matters.”

Mr Ashton’s book though now reveals that the reason the Lord Advocate had no control over the documents was that Norman McFadyen had signed a non-disclosure agreement before viewing them.

According to Mr Ashton, the Crown had “secretly, ceded to the CIA the right to determine what information should, or should not, be disclosed in a Scottish Court”.

Also, further revelations contained in Mr Ashton’s book show that far from being of no significance to the case, the redacted sections of the cables were in fact highly significant.

The defence team eventually forced the Crown to hand over less redacted versions of the cables that contained, contrary to Boyd’s claims, crucial information about Giaka – including doubts about the value of his intelligence information.

Further sections detailed meetings with Giaka not included in the original documents.

Acting for the defence, Richard Keen QC, questioned claims by the Crown that the redacted sections were of no consequence

Pointing to their clear significance, he told the Court: “I frankly find it inconceivable that it could have been thought otherwise … Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond”

According to author John Ashton, Lord Advocate Colin Boyd – now Lord Boyd – had “seriously misled the Court”.

[My own 2007 account in The Scotsman of this shameful and discreditable episode can be read here. What is surprising and deeply regrettable is that the trial judges in their judgement made no mention of this disgraceful Crown conduct.  Had it been a defence advocate who had been detected misleading the court in this way, the matter would certainly not have been overlooked and the consequences for the advocate in question would have been dire.]

One of the most disgraceful episodes in the Crown Office’s recent history

Two years ago today, I posted on this blog an item headed Former Lord Advocate ... seriously misled the Megrahi Court claims book author.  It bears repeating:

[This is the headline over a report published today on the Newsnet Scotland website.  It reads in part:]

Former Lord Advocate, Colin Boyd QC, [now Court of Session judge, Lord Boyd] has been accused of misleading the Court during the trial of Abdelbaset al-Megrahi.

The claim, contained in the book Megrahi – You are my Jury, relates to the QC’s intervention in a matter involving secret CIA cables that contained details of discussions between the US agency and a Libyan ‘supergrass’ named Majid Giaka.

Giaka was a former work colleague of Mr Megrahi who had contacted the CIA claiming to have evidence linking the Libyan and his co-accused Al Amin Khalifa Fhima to the Lockerbie bombing.

Giaka was scheduled to give evidence to the Court in August 2000, but was delayed due to legal wrangling over the telex cables.

Demands by the Libyan’s defence team to see the cables in full led to the intervention by then Lord Advocate Colin Boyd, an episode described by book author John Ashton as “one of the most disgraceful episodes in the Crown Office’s recent history”.

Mr Megrahi’s defence team had requested full disclosure of the secret cables which had been heavily redacted for apparent security reasons.

Lawyers acting on behalf of the two Libyans were informed that the twenty five cables were all that existed and that the redacted areas covered general areas not relevant to the Lockerbie incident.

According to the book, Procurator Fiscal Norman McFadyen [now a sheriff in Ayr] claimed that no-one from the Crown had seen the unedited cables and that the redacted material was irrelevant.

However it subsequently emerged that weeks earlier on 1st June 2000, members of the Crown Office had indeed seen the unedited cables, one of whom was Norman McFadyen and the other Alan Turnbull QC [now a Court of Session judge].

On 22 August on learning of this, Mr Megrahi’s legal team raised the issue with the Court, describing it as “a matter of some considerable importance”.

According to Ashton’s book, Bill Taylor QC argued that without access to the full cables, the defendants would be denied a fair trial, and said: “I emphatically do not accept that what lies behind the blanked out sections is of no interest to a cross examiner … Further, I challenge the right of the Crown to determine for the defence what is or is not of relevance to the defence case.”

Mr Taylor urged the Court to ask the Crown to obtain the complete copies of the cables from the CIA.

In a move, described as unusual by author John Ashton, Lord Advocate Colin Boyd then attended the Court in person and admitted that McFadyen and Turnbull had indeed seen the cables but repeated the Crown’s earlier assertions that the redacted areas had no bearing on the cables themselves or the case.

“While they may have been of significance to the Central Intelligence Agency, they had no significance whatsoever to the case” he said.

Mr Boyd explained that according to Crown QC Alan Turnbull: “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 case.”

Mr Boyd also explained that he had no control over the documents that they resided in the USA under the control of US authorities.

Boyd ended by stating categorically: “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 Mr Majid [Giaka] on these matters.”

Mr Ashton’s book though now reveals that the reason the Lord Advocate had no control over the documents was that Norman McFadyen had signed a non-disclosure agreement before viewing them.

According to Mr Ashton, the Crown had “secretly, ceded to the CIA the right to determine what information should, or should not, be disclosed in a Scottish Court”.

Also, further revelations contained in Mr Ashton’s book show that far from being of no significance to the case, the redacted sections of the cables were in fact highly significant.

The defence team eventually forced the Crown to hand over less redacted versions of the cables that contained, contrary to Boyd’s claims, crucial information about Giaka – including doubts about the value of his intelligence information.

Further sections detailed meetings with Giaka not included in the original documents.

Acting for the defence, Richard Keen QC, questioned claims by the Crown that the redacted sections were of no consequence

Pointing to their clear significance, he told the Court: “I frankly find it inconceivable that it could have been thought otherwise … Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond”

According to author John Ashton, Lord Advocate Colin Boyd – now Lord Boyd – had “seriously misled the Court”.

[My own 2007 account in The Scotsman of this shameful and discreditable episode can be read here. What is surprising and deeply regrettable is that the trial judges in their judgement made no mention of this disgraceful Crown conduct.  Had it been a defence advocate who had been detected misleading the court in this way, the matter would certainly not have been overlooked and the consequences for the advocate in question would have been dire.]

US relatives push for review that could keep Megrahi in jail

[This is the headline over a story by Lucy Adams in today's edition of The Herald. It reads in part:]

American relatives of the victims of Pan Am 103 are expected to push for a judicial review if Justice Secretary Kenny MacAskill agrees to transfer the man convicted of the Lockerbie bombing.

The families have taken legal advice in both London and Scotland and will seek the move if Mr MacAskill agrees to a request already submitted by the Libyan government made under a Prisoner Transfer Agreement signed by Tony Blair in 2007.

It could significantly delay the return to Libya of Abdelbaset Ali Mohmed al Megrahi, 57, who is currently serving 27 years in HMP Greenock for the bombing and is receiving treatment for advanced stage prostate cancer.

SNP MSP Christine Grahame, who has visited Megrahi twice in prison recently, said this could effectively seal his fate, ensuring he dies here in prison. (...)

She is also to contact Mr MacAskill with concerns about the Crown Office signing a non-disclosure agreement with the US government in June 2000.

Frank Mulholland, the solicitor-general, recently wrote to Ms Grahame to explain that Norman McFadyen, the Crown Agent and now chief executive of the Crown Office, signed the document that allowed him to see certain documents but not share them with the defence. (...)

Ms Grahame believes that this failure to pass on the information poses very serious questions about the manner in which Crown officials conducted themselves.

Some redacted parts of the documents were later released to the court and subsequently discredited a Crown witness.

Senior Scottish Prison Service officials have said that there is nowhere within the prison estate properly suited to managing Megrahi's condition.

Ms Grahame 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.

"The likelihood of a drawn-out process resulting from a judicial review launched by US relatives would effectively condemn Mr Megrahi to die in prison. There has already been considerable delay which means he will not live to see the end of the appeal he has ongoing against his conviction.

"Senior officials in the Scottish Prison Service have already told me that there is nowhere within the prison estate suitable for Mr Megrahi as he undergoes his treatment.

"If he is allowed to die in prison and it is subsequently established he was innocent then many people will be looking at the reasons why the Scottish justice system failed so dramatically."

[An article by Tom Peterkin in today's edition of The Scotsman contains the following:]

Families of Lockerbie victims in the United States might apply for a judicial review if the Scottish Government decides Abdelbaset Ali Mohmed al-Megrahi should be sent home to Libya.

The possibility will be raised by the US-based organisation Victims of Pan Am 103 Group when its board meets next week in New Jersey.

Its president, Frank Duggan, a Washington lawyer, said there would be "uproar" if justice secretary Kenny MacAskill let Megrahi return home under a prisoner transfer agreement between the UK and Libya. (...)

Mr Duggan confirmed that a judicial review would be on the agenda when the group's board meets on Monday.

He said families of the US victims were assuming that MacAskill would "do the right thing" and decide that Megrahi should serve out his life sentence in a Scottish jail.

But he added: "The board is going to meet next Monday in New Jersey, and we could take a vote at the board on this issue." (...)

A spokesman for the Scottish Government said it "would not be appropriate to comment" while Mr MacAskill was considering representations on the prisoner transfer agreement.

A spokesman for the Crown Office said: "The decision in relation to prison transfer application from the Libyan authorities is wholly a matter for the Scottish ministers. The Crown has no role in this process."

[The Times publishes an article focusing on the furious reaction by the Crown Office to Christine Grahame MSP's
criticism of the Crown's having accepted access to evidence in the course of the Lockerbie trial under conditions that disabled it from passing that material on to the defence without the consent of the United States authorities. The article reads in part:]

The Crown Office last night took the unprecedented step of issuing a statement slapping down a Nationalist politician for making “defamatory and entirely unfounded allegations of the most serious kind”.

The rebuke came in a strongly worded statement after Christine Grahame, the SNP MSP, made serious allegations against Crown Office agent Norman McFadyen in relation to the handling of evidence in the Lockerbie trial.

A Crown Office spokesman said: “Norman McFadyen is a man of the utmost integrity who is held in the highest regard by the law officers. Not only is the allegation false in itself but Ms Grahame appears to have misunderstood the process because she has referred to documents which were not part of it.” The Crown Office made it clear that it had made all the material it held available to the trial court and also the Scottish Criminal Cases Review Commission.

[Note by RB: Whether the Crown Office made available to the defence and to the court all the material that it held is a highly contentious issue and is a matter that will be explored in some depth in future tranches of the current appeal by Abdelbaset Megrahi, assuming that his state of health does not compel him to abandon that appeal in order to benefit from prisoner transfer. It is also noteworthy that, as reported by The Times, the Crown Office statement refers only to "material that it held" and does not address the issue of material which it did not hold, but to which it was given access under terms that prevented the Crown from disclosing it to the defence.]

Editor of The Firm asks for clarification

[What follows is an e-mail sent today by Steven Raeburn, the editor of the Scottish lawyers' magazine The Firm, to various officials of the Scottish Government and the Crown Office.]

The Scottish Government advise that the news release below was sent by Crown Office.

As an editor, I am concerned at the covert nature of this, which does appear to constitute something of an off record whispering campaign, or a conscious effort to traduce Ms Grahame, who is an elected member of Parliament. Whilst not every editor may be familiar with the specific point Ms Grahame has made, which you claim is defamatory, I can advise you that the same point was made to me directly by Lhamin Khalifa Fhimah's former defence team in 2004, in terms far from less circumspect and a good deal more critical than the published claims of Ms Grahame. If her claims are true, which we must accept is a possibility, they cannot be defamatory, and accordingly Mr McFadyen may potentially have some legitimate questions to answer. The full picture may not prove to be as definitive as the release presently claims.

Hence, it is appropriate that we tread carefully. Therefore, would you be able to advise:

- Is this release attributable, and if so, to whom?

- Is this for publication?

- If the comments made my Ms Grahame are defamatory as claimed, is an action for defamation being pursued?

- If the "defamatory and entirely unfounded allegations of the most serious kind" have been published, is any action being taken against the publication(s) in question?

- And do you have any additional statement to make in respect of this?

I do await hearing from you.

---------

From: THE SCOTTISH GOVERNMENT

NOTE TO EDITORS

We have been made aware of serious allegations made by Christine Grahame against the Crown Agent, Norman McFadyen, in relation to the Lockerbie trial.

These are defamatory and entirely unfounded allegations of the most serious kind. Norman McFadyen is a man of the utmost integrity who is held in the highest regard by the Law Officers.

Not only is the allegation false in itself but Mrs Grahame appears to have misunderstood the process because the documents which she has referred to were not part of and had absolutely nothing to do with it.

The whole process was fully considered by the trial court which thanked the then Lord Advocate for the Crown s efforts to bring as much information as possible before the Court.

By the end of the process information made available to the Crown by the US authorities was made available to the defence, the trial court and also the Scottish Criminal Cases Review Commission in the form in which it was received from the US authorities.

The Commission extensively and fully investigated the process. The Commission concluded that there was no basis to refer the issue to the appeal court.

[According to a report dated 21 July on The Firm's website, the Crown Office is refusing to answer Mr Raeburn's queries.]

MSP asks police to investigate Crown Agent

[The Scottish edition of the Sunday Express ran the following story by Meg Milne on 19 July. It does not seem to feature on the newspaper's website. A number of other Scottish Sunday newspapers apparently decided to spike the story because of the Crown Office statement mentioned below.]

Police will decide this week if one of Scotland's most senior prosecutors is to be investigated over allegations about the Lockerbie trial.

The move comes after SNP backbencher Christine Grahame raised serious concerns in a letter to Lothian and Borders Chief Constable David Strang.

Ms Grahame wants to investigate Crown Agent Norman McFadyen, who led the 2000 prosecution of Abdelbaset Ali Mohmed Al Megrahi, who is appealing his conviction.

Ms Grahame, who said she has concerns about Mr McFadyen's role, said y esterday: "After considerable deliberation I have decided to report this matter to Lothian and Borders Police.

"It is becoming increasingly apparent that the case against Mr Megrahi, w ho is terminally ill, does not, in my view, stand up to thorough examination."

However, in an unprecedented step, the Crown Office issued a statement rebuking Ms Grahame for making "defamatory and entirely unfounded allegations".

A spokesman said: "We have been made aware of serious allegations made by Christine Grahame.

"These are defamatory and entirely unfounded allegations of the most serious kind. Norman McFadyen is a man of utmost integrity who is held in the highest regard by the Law Officers."

A Lothian and Borders Police spokeswoman said:

"If there is a statement from the Chief Constable, it will be on Monday".

Details of the allegations made by Ms Grahame - which have been seen by the Scottish Sunday Express - cannot be repeated for legal reasons.

However, the South of Scotland MSP also claims to have copies of secret US intelligence documents that show Iran may have been responsible for the terrorist outrage.

One document, dated September 24, 1989, states:

"The bombing of the Pan Am flight was conceived, authorised and financed by Ali-Akbar [Montashemi], the former Iranian Minister of Interior.

"The execution of the operation was contracted to Ahmad Jabril, Popular Front for the Liberation of Palestine General Command leader, for a sum of 1,000,000 US dollars.

"One hundred thousand dollars of this money was given to Jabril up front in Damascus, by the Iranian Ambassador to Sy (Syria) Muhammad Hussan for initial expenses.

"The remainder of the money was to be paid after successful completion of the mission."

As the Sunday Express first revealed in 2004, it also states that analysis of materials confiscated in a raid of a PFLP-GC cell in Germany in October 1988 provided strong circumstantial evidence linking the cell to the bombing and that Iran had reportedly made a large payment to the PFLP-GC following the bombing.

Justice Secretary Kenny MacAskill is currently considering a prisoner transfer request from Libya for Megrahi, 57, who is terminally ill with prostrate cancer in Greenock Prison.

Yesterday, it emerged that some of the families of the American victims are planning to block his repatriation, if it is approved, by applying for a judicial review of the decision.

Ms Grahame claims that such a move would ensure that Megrahi dies in prison and she repeated her calls for the former Libyan agent to be released on compassionate grounds.

Secrets of a memo: the Crown and the CIA

[This is the headline over an article by John Ashton published in today’s edition of the Scottish Review and also here on the Megrahi: You are my Jury website.  It reads in part:]

Welcoming the release of the Scottish Criminal Cases Review Commission's report on the conviction of Abdelbaset al-Megrahi on 25 March, Alex Salmond managed to add to the roll call of excuses for not ordering a public inquiry into the case. 

The report, he said, 'in many ways is far more comprehensive than any inquiry could ever hope to be'. In fact, it's not: the SCCRC's job was to establish whether Megrahi may have been wrongly convicted, not to examine why the case went so badly wrong, although it undoubtedly shed some light on that matter. 

  

If a single document illustrates why we still need an inquiry, it is a confidential memo dated 2 June 2000 by the lead procurator fiscal on the case, Norman McFadyen. Published here for the first time, it reports on a meeting that McFadyen and advocate depute Alan Turnbull QC had had the previous day at the US embassy in The Hague. Large sections of it remain redacted. 

The two prosecutors were there to inspect CIA cables relating to one of the Crown's star witnesses, an ex-colleague of Megrahi's called Majid Giaka, who was a member of the Libyan external intelligence service, the ESO. Giaka, it transpired, was also a CIA informant. Crucially, he claimed that, shortly before the bombing, Megrahi had arrived in Malta with a brown Samsonite suitcase and that his co-accused Lamin Fhimah had helped him carry it through airport customs. If true, this was highly significant, because the Lockerbie bomb was also contained within a brown Samsonite and, according to the Crown, began its journey in Malta. 

Twenty-five heavily redacted cables had been disclosed to the defence. The purpose of the meeting, according to the memo, was to view almost entirely unredacted versions in order to determine 'whether there was any material which required to be disclosed to the defence'. Page two states that, at the CIA's insistence, the two men had to sign a confidentiality agreement, the terms of which McFadyen described as follows: 'If we found material which we wished to use in evidence we would require to raise that issue with the CIA and not make any use of the material without their agreement'. In effect, then, the Crown had secretly ceded to the CIA the right to determine what material might be used in court. 
          

But it's what followed a few paragraphs later that's key. McFadyen reported that, having inspected the cables: 

We were able to satisfy ourselves that there was nothing omitted which could assist the defence in itself. There were some references to matters which in isolation might be thought to assist the defence – eg details of payments or of efforts by Majid to secure sham surgery – but since evidence was being provided as to the total of payments made and of the request for sham surgery, the particular material did not appear to be disclosable. We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence.

McFadyen was correct in stating that evidence had been disclosed of the total payments to Giaka and a request for sham surgery in order to enable him to resign from the ESO. The payments were detailed in two separate CIA documents (not cables) while his desire for sham surgery request was referred to in one of the disclosed cables.

When, almost three months later, the defence counsel learned of the Hague embassy meeting, they urged the court to ask the Crown to obtain the complete cables from the CIA. In response, the lord advocate, Colin Boyd QC, assured the court that McFadyen's and Turnbull's review had established 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 of incrimination]'. He added: '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 Mr Majid [Giaka] on these matters'.

The court nevertheless urged the Crown to seek fuller versions of the cables from the CIA. Three days later the Crown handed the defence copies with far fewer redactions. What, then, was contained in the previously concealed sections, which, in McFadyen's view, was 'not relevant to the case or helpful to the defence'? Here's what.

There were repeated references not only to Giaka's desire for sham surgery, but also his repeated and successful pleas to the CIA to pay for it. One of the cables described him as 'something of a hypochondriac', while another noted his claim to be a distant relative of Libya's former leader King Idris. A further one revealed that he wanted the CIA to set him up in a car rental business in Malta and that he had saved $30,000 towards the venture. His handlers believed that much of the money had been acquired from illegal commissions and perhaps through low-level smuggling. 

Crucially, there were references to other meetings with the CIA, for which no cables had disclosed. Eventually the CIA coughed up 36 more, about which McFadyen and Turnbull were seemingly unaware.

The most telling fact concealed by the redactions was that the CIA had grown increasingly dissatisfied with Giaka. One noted that his information about the ESO's structure and administration 'may be somewhat skewed by his prolonged absence and lack of seniority'. Another revealed that he would be told: 'that he will only continue his $1,000 per month salary payment through the remainder of 1989. If [he] is not able to demonstrate sustained and defined access to information of intelligence value by January 1990, [the CIA] will cease all salary and financial support until such access can be proven again'. 

A later section of the same cable noted: 'it is clear that [Giaka] will never be the penetration of the ESO that we had anticipated… [He] has never been a true staff member of the ESO and as he stated at this meeting, he was coopted with working with the ESO and he now wants nothing to do with them or their activities… We will want to ensure that [he] understands what is expected of him and what he can expect from us in return. [CIA] officer will therefore advise [him] at 4 Sept meeting that he is on "trial" status until 1 January 1990'.

Having analysed the unredacted sections, Richard Keen QC, respresenting Megrahi's co-accused, Lamin Fhimah, told the court it was 'abundantly clear' that much of the newly uncovered information was highly relevant to the defence, adding, 'I frankly find it inconceivable that it could have been thought otherwise... Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond'. 

In order words, the Crown had been caught out misleading the court. I do not suggest that Boyd did so deliberately, neither that McFadyen and Turnbull deliberately concealed evidence that they knew would be helpful to the defence. Motive is not the issue: what really matters is the quality of the Crown's judgement. 

Armed with the new information and the 36 additional cables, Keen and Megrahi's counsel, Bill Taylor QC, were able to demolish Giaka's credibility and with it the case against Fhimah, who was acquitted. Had the court taken Boyd at his word and the redactions not been lifted, Giaka might have left the witness stand with his credibility intact and Fhimah may well have been convicted along with Megrahi. 

The big remaining question raised by the McFadyen memo is: was it an isolated failure of judgement or the tip of the iceberg? The SCCRC found numerous items of significant evidence which the Crown had failed to disclose to Megrahi's lawyers. Did the prosecutors also satisfy themselves in each instance 'that there was nothing omitted which could assist the defence'? Only a full public inquiry can adequately answer such questions. It is high time that Salmond's government ordered one.

[My own 2007 account in The Scotsman of the shameful CIA cables episode can be read here. It contains the following paragraph:]

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.

[Had it been defence lawyers who had been caught misleading the court in this fashion, censure and severe professional consequences would inevitably have followed.]

The quality of the Crown's judgement

An item from this blog two years ago today:

Secrets of a memo: the Crown and the CIA

[This is the headline over an article by John Ashton published in today’s edition of the Scottish Review and also here on the Megrahi: You are my Jury website.  It reads in part:]

Welcoming the release of the Scottish Criminal Cases Review Commission's report on the conviction of Abdelbaset al-Megrahi on 25 March, Alex Salmond managed to add to the roll call of excuses for not ordering a public inquiry into the case. 

The report, he said, 'in many ways is far more comprehensive than any inquiry could ever hope to be'. In fact, it's not: the SCCRC's job was to establish whether Megrahi may have been wrongly convicted, not to examine why the case went so badly wrong, although it undoubtedly shed some light on that matter. 

If a single document illustrates why we still need an inquiry, it is a confidential memo dated 2 June 2000 by the lead procurator fiscal on the case, Norman McFadyen. Published here for the first time, it reports on a meeting that McFadyen and advocate depute Alan Turnbull QC had had the previous day at the US embassy in The Hague. Large sections of it remain redacted. 

The two prosecutors were there to inspect CIA cables relating to one of the Crown's star witnesses, an ex-colleague of Megrahi's called Majid Giaka, who was a member of the Libyan external intelligence service, the ESO. Giaka, it transpired, was also a CIA informant. Crucially, he claimed that, shortly before the bombing, Megrahi had arrived in Malta with a brown Samsonite suitcase and that his co-accused Lamin Fhimah had helped him carry it through airport customs. If true, this was highly significant, because the Lockerbie bomb was also contained within a brown Samsonite and, according to the Crown, began its journey in Malta. 

Twenty-five heavily redacted cables had been disclosed to the defence. The purpose of the meeting, according to the memo, was to view almost entirely unredacted versions in order to determine 'whether there was any material which required to be disclosed to the defence'. Page two states that, at the CIA's insistence, the two men had to sign a confidentiality agreement, the terms of which McFadyen described as follows: 'If we found material which we wished to use in evidence we would require to raise that issue with the CIA and not make any use of the material without their agreement'. In effect, then, the Crown had secretly ceded to the CIA the right to determine what material might be used in court. 

But it's what followed a few paragraphs later that's key. McFadyen reported that, having inspected the cables: 

We were able to satisfy ourselves that there was nothing omitted which could assist the defence in itself. There were some references to matters which in isolation might be thought to assist the defence – eg details of payments or of efforts by Majid to secure sham surgery – but since evidence was being provided as to the total of payments made and of the request for sham surgery, the particular material did not appear to be disclosable. We were satisfied that the material which had been redacted was not relevant to the case or helpful to the defence.

McFadyen was correct in stating that evidence had been disclosed of the total payments to Giaka and a request for sham surgery in order to enable him to resign from the ESO. The payments were detailed in two separate CIA documents (not cables) while his desire for sham surgery request was referred to in one of the disclosed cables.

When, almost three months later, the defence counsel learned of the Hague embassy meeting, they urged the court to ask the Crown to obtain the complete cables from the CIA. In response, the lord advocate, Colin Boyd QC, assured the court that McFadyen's and Turnbull's review had established 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 of incrimination]'. He added: '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 Mr Majid [Giaka] on these matters'.

The court nevertheless urged the Crown to seek fuller versions of the cables from the CIA. Three days later the Crown handed the defence copies with far fewer redactions. What, then, was contained in the previously concealed sections, which, in McFadyen's view, was 'not relevant to the case or helpful to the defence'? Here's what.

There were repeated references not only to Giaka's desire for sham surgery, but also his repeated and successful pleas to the CIA to pay for it. One of the cables described him as 'something of a hypochondriac', while another noted his claim to be a distant relative of Libya's former leader King Idris. A further one revealed that he wanted the CIA to set him up in a car rental business in Malta and that he had saved $30,000 towards the venture. His handlers believed that much of the money had been acquired from illegal commissions and perhaps through low-level smuggling. 

Crucially, there were references to other meetings with the CIA, for which no cables had disclosed. Eventually the CIA coughed up 36 more, about which McFadyen and Turnbull were seemingly unaware.

The most telling fact concealed by the redactions was that the CIA had grown increasingly dissatisfied with Giaka. One noted that his information about the ESO's structure and administration 'may be somewhat skewed by his prolonged absence and lack of seniority'. Another revealed that he would be told: 'that he will only continue his $1,000 per month salary payment through the remainder of 1989. If [he] is not able to demonstrate sustained and defined access to information of intelligence value by January 1990, [the CIA] will cease all salary and financial support until such access can be proven again'. 

A later section of the same cable noted: 'it is clear that [Giaka] will never be the penetration of the ESO that we had anticipated… [He] has never been a true staff member of the ESO and as he stated at this meeting, he was coopted with working with the ESO and he now wants nothing to do with them or their activities… We will want to ensure that [he] understands what is expected of him and what he can expect from us in return. [CIA] officer will therefore advise [him] at 4 Sept meeting that he is on "trial" status until 1 January 1990'.

Having analysed the unredacted sections, Richard Keen QC, respresenting Megrahi's co-accused, Lamin Fhimah, told the court it was 'abundantly clear' that much of the newly uncovered information was highly relevant to the defence, adding, 'I frankly find it inconceivable that it could have been thought otherwise... Some of the material which is now disclosed goes to the very heart of material aspects of this case, not just to issues of credibility and reliability, but beyond'. 

In order words, the Crown had been caught out misleading the court. I do not suggest that Boyd did so deliberately, neither that McFadyen and Turnbull deliberately concealed evidence that they knew would be helpful to the defence. Motive is not the issue: what really matters is the quality of the Crown's judgement. 

Armed with the new information and the 36 additional cables, Keen and Megrahi's counsel, Bill Taylor QC, were able to demolish Giaka's credibility and with it the case against Fhimah, who was acquitted. Had the court taken Boyd at his word and the redactions not been lifted, Giaka might have left the witness stand with his credibility intact and Fhimah may well have been convicted along with Megrahi. 

The big remaining question raised by the McFadyen memo is: was it an isolated failure of judgement or the tip of the iceberg? The SCCRC found numerous items of significant evidence which the Crown had failed to disclose to Megrahi's lawyers. Did the prosecutors also satisfy themselves in each instance 'that there was nothing omitted which could assist the defence'? Only a full public inquiry can adequately answer such questions. It is high time that Salmond's government ordered one.

[My own 2007 account in The Scotsman of the shameful CIA cables episode can be read here. It contains the following paragraph:]

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.

[Had it been defence lawyers who had been caught misleading the court in this fashion, censure and severe professional consequences would inevitably have followed.]