Scotland’s most senior judges have upheld a secrecy order signed by the foreign secretary, Dominic Raab, to withhold intelligence documents believed to implicate a Palestinian terror group in the Lockerbie bombing.
Lawyers acting for the family of Abdelbaset al-Megrahi, the Libyan convicted of the bombing, believe the documents are central to a fresh appeal against his conviction which starts on Tuesday and had urged the court to release them.
The appeal has been lodged by Megrahi’s son, Ali Abdulbaset al-Megrahi, in what is believed to be the first posthumous miscarriage of justice case in Scottish legal history. Megrahi died of cancer in Tripoli in 2012 after being released from prison on compassionate grounds.
The documents are thought to have been sent by King Hussein of Jordan to the UK government after Pan Am Flight 103 was blown up over the town of Lockerbie on December 1988, killing all 259 passengers and crew, and 11 townspeople.
The documents are believed to allege that a Jordanian intelligence agent within the Popular Front for the Liberation of Palestine-General Command (PFLP-GC), called Marwan Khreesat, made the bomb. Critics of Megrahi’s 2001 conviction believe the PFLP-GC carried out the attack on behalf of the Tehran regime in revenge for the destruction of an Iranian airliner by the US warship the USS Vincennesa in July 1988, but this was covered up in order to implicate Libya.
In August, Raab signed a public interest immunity certificate to keep the documents secret. In 2008 the then foreign secretary, David Miliband, also refused to release the papers ahead of Megrahi’s second appeal, later abandoned in the belief he would be released early from prison..
In a ruling issued late on Friday, Scotland’s most senior judge, Lord Carloway, the lord justice general, said the court had upheld Raab’s order signed in August, after studying the papers in a secret hearing earlier this month, even though the foreign secretary agreed the documents are relevant to the appeal..
“His clear view is [it] would cause real harm to the national security of the UK because it would damage counter-terrorism liaison and intelligence gathering between the UK and other states,” Carloway said, referring to Raab’s submission. “The documents had been provided in confidence to the government. Their disclosure would reduce the willingness of the state, which produced the documents, to confide information and to co-operate with the UK.”
To the disappointment of the Megrahis’ lawyers, Carloway sided with the UK government by arguing much of the material in the secret documents was known to Megrahi’s defence team at his trial in the Netherlands in 2000-01, as were claims about Khreesat’s role, even though the Jordanian cables were withheld from his lawyers.
The Megrahi family lawyers insist the documents could have opened up significant new lines of inquiry and helped prove Megrahi’s innocence if they had been released before his trial. Megrahi tried to incriminate the PFLP-GC in the bombing.
The Scottish government’s lawyers, who are on the UK government side in opposing the appeal, told Carloway they believed the documents should be disclosed.
The new appeal hearing was ordered after the Scottish Criminal Cases Review Commission decided Megrahi’s conviction was arguably a miscarriage of justice, because of significant discrepancies in the evidence of the Crown’s key witness, a Maltese shopkeeper called Tony Gauci, who alleged Megrahi had bought clothes put in the suitcase bomb.
The SCCRC also said the Crown had failed to disclose Gauci and his brother were offered reward payments totalling $3m for testifying. Given that evidence, no reasonable jury would have convicted Megrahi, and his rights to a fair trial under article 6 of the European Convention on Human Rights had been breached.
The commission found the Jordanian documents were hearsay and had not come from a primary source. That contradicts a previous ruling by the SCCRC. In 2007, with different commissioners involved in the case, it had decided the Jordanian documents did raise questions about the safety of Megrahi’s conviction when it recommended an appeal.
With that hearing under way in August 2009, Megrahi abandoned his case after it emerged he had cancer. “He did so at least partly because he thought that by doing so his prospects of compassionate release would be increased,” the court said. Megrahi was then released by Kenny MacAskill, then Scottish justice secretary, and now an SNP MP.