An editorial by the Observer of Friday 29th December 2017 stated: -
"The right to a fair trial is a linchpin of the rule of law and a free and democratic society. The obligation of police and prosecutors to disclose unused material that might support the defence case is critical to ensuring a fair trial. Indeed, a failure to disclose relevant information to the defence team is one of the most common causes of miscarriages of justice.
In the cases of Liam Allen and Isaac Itiary, both accused of rape, the Metropolitan police failed to hand over relevant text messages to defence lawyers in a timely fashion.
When this finally happened, both cases were dropped, but not before Itiary had spent four months in jail awaiting trial and Allan two years on bail.
The [British] attorney general rightly labelled this an “appalling failure” of the criminal justice system."
In Scotland an almost exact parallel of these two cases is being ignored by Scottish ministers, and repeatedly denied by the Scottish Crown Office.
It is 29 years since the Lockerbie bombing. On the evening of 21st December 1988, Pan Am 103, flying from London Heathrow to New York, was destroyed by a terrorist bomb. All 259 passengers and crew were killed, and 11 people on the ground in and around the Scottish town of Lockerbie.
Two Libyans were accused by the US and Britain. In a trial held in Holland, one accused, Baset al-Megrahi, was found
During his trial, a series of mistakes preventing a fair trial were committed by Scottish prosecutors and the police.
1. Attempt by Scottish Lord Advocate to misrepresent CIA spy record.
The Scottish Lord Advocate misrepresented the nature of several CIA case reports by
|CIA witness Giaka|
The CIA had secretly met with members of the Lord Advocate's legal team. At that meeting the CIA disclosed the contents of the CIA case reports. These recorded that CIA asset Giaka had been under threat of losing his salary and job unless he came up with information of intelligence value. If Giaka had been released, he would have been in danger from Libya's secret police.
The Lord Advocate informed the trial court of the existence of the case reports, and stated that he had studied them carefully. He had concluded that they contained nothing of relevance to the defence case.
Eventually the defence gained access to un-redacted versions of the reports. Their angry submission to the court convinced the judges that Giaka was an untrustworthy witness and he was instructed to take no further part in the trial.
The Lord Advocate's presentation of events in this matter constituted, in the opinion of the defence, and later the campaign group "Justice for Megrahi" (JfM), an unsuccessful attempt to distort the nature of Scots law.
2. Concealment of a police diary recording a history of insistent demands for payment and multi-million dollar offers of reward to remaining identification witness, Maltese shopkeeper Tony Gauci.
During the trial, the senior police detective in the Lockerbie investigation was asked: Did he keep a personal record of his investigations?
He said yes. His diary was in Glasgow, in his office.
Nothing more was asked or said about the diary.
Six years after the trial, during a case review by the Scottish Criminal Cases Review Commission, the diary was
|Gauci. $2m for evidence|
There also were quotations from letters sent to the police by the US Department of Justice (DoJ) concerning offers of "unlimited monies, including $10,000 available immediately". The purpose of the $10,000 was not explained.
Several later entries discussed money and conversations with Gauci in which he and his brother Paul made insistent demands for payment. When the police asked of the US DoJ what Gauci must do to receive the money, the reply was "only if he gives evidence"
The existence and contents of the diary were known to the prosecution team, the Crown Office and the police. Yet they did not disclose it to the defence team nor the judges.
3. Hand-written notes in a forensic diary which destroyed the provenance of a key fragment of forensic evidence.
Two forensic scientists examined the Lockerbie debris and together wrote a report to be placed before the judges, the prosecution and the defence teams.
One scientist retired. The remaining colleague presented the forensic report and defended it during the trial.
In that report it was stated that a fragment of an electronic timer board discovered at the crash site and recorded as
|Timer fragment PT/35(b).|
The scientist repeated those words in court. The judges were convinced.
What the judges and defence team did not know was that the fragment and MEBO timer boards were not, in fact, "similar in all respects".
Deep within his forensic notebook, the scientist had recorded, in the margins of two separate pages, his concerns regarding metallurgical analysis of the fragment and control sample.
He had written that fragment PT/35(b) contained a
|PT/35(b) protected by "pure tin".|
The police speculated at the time that the heat of the Lockerbie explosion had evaporated the lead. But they made no further enquiries and the records remained within police files.
Only in 2009, when police records of the event were finally
|Police control sample. Protected by alloy 70%tin/30%lead.|
This false forensic evidence was central to the conviction. It convinced the judges that a timer board supplied by MEBO to Libya had indeed been deployed by Libya and al-Megrahi.
The court had been misled by either perjury, or by gross negligence, by a trusted forensic scientist.
And so the trial of Baset al-Megrahi ended, in one of the greatest miscarriages of justice ever in Scottish history
In the words of The Observer:
"The police wield immense power over our lives. From Hillsborough to Stephen Lawrence, the Birmingham Six to child sex abuse in Rotherham: the past tells us that when they are not adequately held accountable for that power, the result can be deep injustices of the very worst kind."
English law has admitted its mistakes in the cases of Liam Allen and Isaac Itiary. Does natural justice no longer hold sway north of the English border? When, oh when, will the Scottish government and legal profession act?
For The Observer editorial, please click here.