[This is the headline over my most recent column in the Scottish lawyers' magazine The Firm. It reads as follows:]
Despite willingness expressed by both the Scottish and UK Governments to hold an inquiry into the Lockerbie debacle, neither has initiated one, and each appear to expect the other to do so. Professor Robert Black QC says the complicated comedy of manners and faux fidelity hides the knowledge of both that the actings of their legal advisers are fatally compromised.
Abdelbaset al-Megrahi abandoned his appeal because he thought it would maximise his chances of being allowed home to Libya to die (by keeping open the possibility of prisoner transfer). In fact, what Kenny MacAskill did was to release him on compassionate grounds, a procedure which, unlike prisoner transfer, does not require that there be no live legal proceedings. But Mr Megrahi had no way of knowing that this was the way that the Cabinet Secretary for Justice would jump.
The abandonment of the appeal did not signify that he now accepted the justness of his conviction. Far from it. In the statement released on his departure he said: “I had to sit through a trial which I had been persuaded to attend on the basis that it would have been scrupulously fair. In my second, most recent, appeal I disputed such a description. I had to endure a verdict being issued at the conclusion of that trial which is now characterised by my lawyers, and the Scottish Criminal Cases Review Commission, as unreasonable. To me, and to other right thinking people back at home in Libya, and in the international community, it is nothing short of a disgrace.”
So the concerns about the conviction felt by many, including the SCCRC, remain. Until those concerns are officially addressed a deep shadow will hover over the Scottish criminal justice system, both domestically and internationally. It is blindingly obvious that the shadow can now best be removed by the establishment of an independent inquiry into the whole circumstances of the Lockerbie disaster.
The Scottish Government says that it favours an inquiry, but that it should be set up by the UK Government. The UK Government says that since all the legal proceedings relating to Lockerbie were under Scottish jurisdiction, any inquiry must be a matter for the Scottish Government. It is difficult to disagree with the following passage from an editorial in The Herald on 25 October 2009: “Yesterday the British and Scottish Governments continued to play pass the parcel over who should call an inquiry. UK Foreign Secretary David Miliband said it was a matter for the Scots because 'that’s the way our system works', while a Scottish Government spokesman insisted that any inquiry had to be convened 'by those with required powers'. The telephone has been in common use in Britain for more than 100 years. It is not beyond the wit of ministers in London and Edinburgh to agree on the format, structure and remit of a Lockerbie inquiry that hopefully would answer some remaining questions without turning into the open-ended Bloody Sunday-style affair.”
If neither government is opposed to an inquiry, but only at odds about who should convene it, why has the problem not been resolved (as it was in relation to Stockline) by setting up a joint inquiry under section 32 of the Inquiries Act 2005? Could the answer be the legal advice that both governments are receiving?
If the possibility of holding a public inquiry were to be discussed within the Scottish Government, from whom would the Scottish Ministers seek advice on the legal aspects of any such enterprise? From their principal legal adviser, the Lord Advocate. If such an inquiry were to be set up, one of the issues at the forefront of its terms of reference would have to be the conduct of the prosecution before, during and after the Lockerbie trial. Who is the head of the Scottish prosecution system? The Lord Advocate, of course.
If the possibility of holding a public inquiry were to be discussed within the UK Government, from whom would UK Ministers seek advice on the Scottish legal aspects of any such enterprise? From their principal Scottish legal adviser, the Advocate General for Scotland. Who was it who in the recent appeal fought valiantly and successfully to keep documents out of the hands of Megrahi’s legal team? The Advocate General for Scotland, of course.
Just the teensiest suspicion of a conflict of interest here, perhaps?
That is what we call the separation of powers :)
ReplyDeleteIf the altimeter trigger were set a bit later, a school of Winnish off the coast would be expected to set up a proper inquiry. With a little FBI and CIA help, they could have proven quite malleable, and tasty, and col. Gaddafi would be behind bars by now. Damn you Scots and your silly ... land ... being so big!
ReplyDeleteWould it not be possible for a public inquiry to be set up outside the framework of government?
ReplyDeleteIt's quite obvious that both governments are loathe to hold an inquiry and the release of Megrahi was to stop the appeal going ahead.
Professor Al-Megrahi spoke of a trial "I had been persuaded to attend on the basis that it would be scrupulously fair".
ReplyDeleteI am sure there was an expectation that the panel of Judges (a Jury having, for reasons that escape me, having been dispensed of) would come to an objective verdict based solely on the evidence but is that in fact what happened?
The background to the proposal to hold a non-jury trial outwith Scotland was the concerns that were expressed following the "legal summit" held in Tripoli in October 1993. At that meeting Megrahi and Fhimah, on the advice of their international legal team (including lawyers from Scotland) decided that they were unwilling to surrender for trial under normal Scottish procedure. I was not a member of that team, but was present in Tripoli at the invitation of the Libyan Government. As is stated in a forthcoming book:
ReplyDelete"In the course of a private meeting that I had a day later with Dr Legwell [the Libyan head of the legal team], he explained to me that the primary reason for the unwillingness of the accused to stand trial in Scotland was their belief that, because of unprecedented pre-trial publicity over the years, a Scottish jury could not possibly bring to their consideration of the evidence in this case the degree of impartiality and open-mindedness that accused persons are entitled to expect and that a fair trial demands. A secondary consideration was the issue of the physical security of the accused if the trial were to be held in Scotland. Not that it was being contended that ravening mobs of enraged Scottish citizens would storm Barlinnie prison, seize the accused and string them up from the nearest lamp posts. Rather, the fear was that they might be snatched by special forces of the United States, removed to America and put on trial there (or, like Lee Harvey Oswald, suffer an unfortunate accident before being put on trial).
"The Libyan government attitude remained, as it always had been, that they had no constitutional authority to hand their citizens over to the Scottish authorities for trial. The question of voluntary surrender for trial was one for the accused and their legal advisers and, while the Libyan government would place no obstacles in the path of, and indeed would welcome, such a course of action, there was nothing that it could lawfully do to achieve it."
Dr Legwell objected to a Jury as due to the prejudicial publicity "a Scottish Jury could not possibly bring to their deliberations the degree of impartiality and open-mindedness that accused persons are entitled to expect".
ReplyDeleteDid the panel of Judges demonstrate impartiality and open-mindedness or were they determined that the defence should gain no advantage from negotiating the form of tribunal befoe which the defendants would agree to appear?
The matter of prejudice is not unique to this case and I suspect that due to the intensity of the attempts of the US and UK Governments to prejudice the trial the case may have been thrown out. However "Camp Zeist" let the prejudice rip.
Would a Scottish Jury have swallowed the official propaganda? I very much doubt it, particularly in the light of the so-called miscarriage of justice cases. Are a Scottish Jury going to take Douglas "moatboy" Hogg at his word?
My point is that while "Camp Zeist" may have looked good on paper to the clinical lawyer's mind the reality was much different and nobody in the "International Legal Team" had the commonsense to see any downside (i.e.what actually transpired.) Or was the prospect of a trial (any trial) just too lucrative?
My personal objective prior to the trial was a proper investigation and the right culprits being brought to trial but a proper investigation was as unwelcome as a fair trial.
I think Al Megrahi was badly advised by people who were not advising him in his best interests.
The judges made a couple of decisions I suspect a jury of people endowed with an average complement of common sense would have baulked at. I can only speculate on the reasons.
ReplyDeleteFirst, they were presented with two possible origins for the bomb suitcase. On one hand, they had evidence of a suitcase of the same type and colour as the bomb bag being seen in container AVE4041, in more or less the position of the bomb bag, before PA103A landed from Frankfurt. And it appeared that the provenance of this suitcase was somewhat mysterious. (They weren't told about the break-in, but even without that, the evidence was pretty interesting.)
On the other hand they were presented with comprehensive baggage records from Luqa showing that no unaccompanied luggage was carried on KM180 - evidence so strong that Air Malta was successful in two separate civil court actions relating to that accusation. To counter that, there was only the Erac printout, surviving by chance in isolation, against a background of scorched-earth destruction of the central records. This showed an unexplained entry, relating to an item which was consistent with its having come from KM180, but which was in fact open to a number of other interpretations.
The judges decided that a very particular analysis of the baggage debris, suggesting that the bomb bag had been placed above a suitcase known to have come from KM180, conclusively excluded the possibility that the case Bedford saw was the bomb bag. Instead, they decided that baggage tray 8849 at Frankfurt must have come off KM180, despite the evidence of the Maltese baggage records. They then decided that (even though there was no record at all of what had been in that tray), it must have been the bomb suitcase.
This seems to me quite perverse. If there was sound logic and reasoning behind these decisions, they have not succeeded in communicating that to me.
[contd....]
[contd....]
ReplyDeleteSecond, the judges were presented with two possible days for Tony Gauci's encounter with the mystery shopper. Tony's original evidence was that it was raining (though not heavily), that the Christmas lights were not yet lit, and that his brother was watching a football match at the time. The time of day was agreed to have been mid-evening, shortly beofre the closing time of 7pm.
The alternatives were 23rd November, when meteorological records show a light shower at that time of day, when the Christmas lights were not yet lit, and when there was a football match on television in the evening - and 7th December, when there is no record of any rain falling, and the Christmas lights were lit (I think they were lit on 5th December), and the televised football match was in the afternoon and had been over for about three hours before the time of the purchase.
And yet, the judges decided the purchase took place on 7th December. They were also content that Tony had identified Megrahi as the purchaser, even though his original description of the man was of someone 20 years older, several inches taller and much more heavily built, and he never actually said "that was the man", with his best shot being that Megrahi was "very like" the man - apparently taking only his face into account, rather than overall build.
Would a jury of 15 people with no axe to grind have come to the same decisions? Personally, I doubt it. If we look at the opinions of people who sat through the trial in the "audience" - such as Jim Swire and Paul Foot - we find a preponderance of opinion that Megrahi didn't do it, or at the very least that the case was in no way proved beyond reasonable doubt.
The judges have said they were under no political or other pressure to return a conviction. Frankly, I think that statement is disingenuous to say the least. I entirely believe that nobody came to them and twisted their arms to return a guilty verdict. However, if they can't see the more subtle pressure to justify the ten years of hype and sanctions and assertions about "unassailable evidence", plus the three-ring circus at Camp Zeist, then they don't have the insight they ought to have.
Baz, if judicial displeasure at the Zeist set-up had been a factor, wouldn't it have been directed towards the Crown? It was the UK Government that set up the procedure (never for a minute expecting that when the crunch came Megrahi and Fhimah actually would surrender). There were no "negotiations" over the form of the trial. The scheme was presented on a take-it-or-leave-it basis by the Government, which refused to have any communication whatsoever with the Libyan authorities or the Libyan lawyers over the fine print.
ReplyDeleteIf the judges had wanted to ensure that no similar scheme was ever contemplated in future, shouldn't they have given the Government a bloody nose by acquitting both accused?
Professor Black makes a good point. However this is not what actually transpired. The panel of Judges transferred the burden of proof, took a theory as evidence, and decided all points of contention in favour of the prosecution. Why was this?
ReplyDeleteIf what you say is correct, and the Government offered a take it or leave it approach and built the facilities at Camp Zeist without any expectation of a trial I think that lends considerable weight to Dr Swire's position that the families never had a proper enquiry into the deaths of their loved ones.
However are you seriously claiming the UK Government refused to have any communication with the Libyan authorities or the Libyan authorities but nonetheless accomodated Dr Legwell's central objection to a Jury trial?
It has long been my view that the object of the Indictment was not a trial but sanctions against Libya hence the attempts of the authorities the prejudice a trial. Unfortunately the Libyan Government wasted a lot of money on inept PR flakes ect. while actually playing into the hands of the West.
The simple point I am making is that Camp Zeist didn't work out as expected and it may not be a good idea to design a unique Tribunal to accomodate defence objections to a regular trial. Had Mr Megrahi been acquitted there would still not have been a proper investigation.
Rolfe - there was no suitcase of PA103 "known to have come from KM180" (besides the claim the "primary suitcase" had.
ReplyDeleteThere were not only two "candiate" days for the purchase of the clothing (23.11.88 or 7.12.88 the two legs of the "Roma" game.)
I suspect the defence didn't make too much of this in case they hit upon another date when Professor Al-Megrahi was in Malta!