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 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 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 Turnball 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 Ashton, Lord Advocate Colin Boyd then attended the Court in person and admitted that McFadyen and Turnball 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 Turnball: “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”.
The book also reveals that far from the defence obtaining all of the cables when they took possession of the original twenty five, there were in fact at least a further 36 cables that were eventually handed over.
Majid Giaka, who was relocated to the USA as part of a deal with the CIA, was eventually cross examined and his testimony and credibility left in tatters; the final exchange between him and Defence QC Richard Keen:
Q. While you’ve been in America, Mr Giaka, have you managed to dip into any of the gems of American literature, such as the short-story writers like James Thurber?
A. I have had – read some books, but not all authors.
Q. Have you encountered someone called Mitty, first name Walter?
A. I do not recall.
Q. No further questions, My Lords
According to John Ashton, the episode left a very nasty taste, he wrote: “the head of Scotland’s prosecution service and two of his most senior officers, whether deliberately or not, had contrived to withhold that evidence from the defence and in the process the Lord Advocate seriously misled the court.”
An act that may have led to a criminal investigation being undertaken against a witness who behaved in a similar manner was barely reported by the media – UK or foreign – and all those involved remained untouched.
The latest revelations follow the publication by the Sunday Herald of the full SCCRC report that calls into question the safety of the guilty verdict recorded against Abdelbaset al-Megrahi.
‘Megrahi – You are my jury’ by John Ashton is available here: http://www.amazon.co.uk/Megrahi-You-Jury-Lockerbie-Evidence/dp/1780270151