Sunday, 1 August 2010

Doubt, guilt and Megrahi

[This is the heading over a letter from Martin Allen in today's edition of the Sunday Herald. It reads as follows:]

It used to be the case that, to secure a conviction, it had to be shown “beyond reasonable doubt” that the accused had committed the crime (Lockerbie: now pressure switches to America, News, July 25). Now it seems that when a crime has been committed, justice is served if a guilty verdict is served on the person who seems most likely to have committed it, regardless of such holes as there may be in the prosecution’s case.

In the case against Abdelbaset al-Megrahi there are such holes. His defence team were denied access to alleged key evidence, and the veracity of a key witness for the prosecution is thrown into doubt by evidence suggesting they were offered huge rewards by overseas organisations to testify.

Megrahi’s abandonment of his appeal cannot be taken as an admission of guilt, given the likelihood of his belief that to continue with it would prevent a compassionate release. His case is one in which a not proven verdict would have been appropriate. Since the Camp Zeist verdict cannot be changed except by a further court hearing, it would be appropriate if those legal experts who have reason to doubt his guilt were to sign a letter to that effect, addressed to the governments of Scotland, the UK, the US and Libya.

[An interesting suggestion. But I fear that such a letter would be pointless: the four governments mentioned just want the whole Lockerbie affair to go away. The only thing that will cause the first two to change their attitude is (a) extreme public and media pressure or (b) legal action that compels them to do so.

A letter from Kevin Donnelly in Scotland on Sunday reads:]

Scotland's reputation has again been dragged through the mud on a world stage, this time by a combination of US politicians seeking to boost their home popularity ahead of elections, a British Prime Minister keen to protect the reputation of oil giant BP, and some home politicians opposed to the SNP on any issue.

It was wrong and profoundly misguided of the four senators to use the world's media to summon Scotland's First Minister and justice secretary to account before its foreign affairs committee. It also displays a misunderstanding of the Scottish Government's role and limited powers under devolution.

The problem for the senators is that no one with half a brain believes the Scottish Government had any involvement with oil deals in the desert.

The fact remains that Kenny MacAskill rejected the Prisoner Transfer request (the basis of the oil deal claims), but was bound by precedent set by previous Scottish Governments and Scottish Office ministers to release al Megrahi on compassionate grounds - it's that simple.

While Scotland can be proud that First Minister Alex Salmond and his justice secretary were diplomatic but firm in their responses to the US Senate committee, we have witnessed the appalling spectacle of a UK prime minister, foreign secretary and ambassador in Washington falling over themselves in a clumsy effort to rubbish Scotland and defend BP.

It must now be a profound question for everyone in Scottish society whether Scottish foreign relations are best served by a UK Government, which has set itself so clearly and fundamentally against Scottish interests abroad.


    (sorry only in german language)

    Zu untersuchen auf welche Art und Weise Mr. Abdelbaset al-Megrahi, durch den Secretary of Justice Kenny MacAskill, seine Freiheit erlangte und die Rückkehr nach Libyen ermöglicht wurde, ist sinnlos und reziprok; da Al Megrahi mit grosser Wahrscheinlichkeit durch ein Miscarriage of Justice in 6 Punkten, unschuldig über 8 Jahre als "politischer Häftling", in schottischen Gefängnissen eingesperrt war und somit eine sofortige Freilassung und Rückkehr in sein Heimatland aus Gerechtigkeit längst überfällig war !

    Von zuverlässiger Seite ist bekannt, dass ein westlicher 'Intelligence Service' aus speziefischen Gründen wusste, dass Al-Megrahi zusammen mit Edwin Bollier (MEBO) von einem "Residenten, XY" (Name bekannt) am 20.Dezember 1988, mit AirMalta Flug KM-231 nach Malta gebucht wurde.
    Nach Aussage von Politik-Correspondent Ian Fergusson wusste Al- Megrahi nicht, dass Ed. Bollier auf den gleichen AirMalta Flug KM-231 am gleichen Tag gebucht war...

    Da Bollier mit einem Swissair Flug direkt von Tripoli nach Zürich reisen konnte, war Al- Megrahi alleine gegen 18:00 Uhr in Malta unter einem code Namen, als "Ahmed Khalifa Abdusamad" eingereist und bis zur Rückreise nach Tripoli, am 21. Dezember 1988, von "Libya Defektor" und CIA Agent Giaka, Abdul al Mgjid (alias "Puzzlepiece"), observiert worden...
    Welche Rolle sollte Ed. Bollier in Malta zugeteilt werden um die Malta-Lüge zu perfektionieren ?

    Die vorgelegten Observations Ergebnisse ergaben keine Beweise, dass Al Megrahi etwas mit einem angeblichen einschleusen eines "Bomb-Bag" auf AirMalta, Flug KM-180, zutun hatte;
    weil unter anderem kein unbekanntes Gepäckstück via Airport Frankfurt (FRA) auf den PanAm Zubringer-Flug PA-103/B nach London-Heathrow (LHR) auf PanAm "Main Flight" PA-103 transferiert wurde !

    Darum ist es höchste Zeit, First Minister Alex Salmond und Secretary of Justice Kenny MacAskill, die unter Verschluss gehaltenen Dokumente der Scottish Criminal Cases Reapeal Commission (SCCRC) sofort zu öffnen um die "Lockerbie-Affäre" gegen Libya und Al-Megrahi zu beenden.

    Erst nach dem Abschluss dieser "SAGA" können die wahren Verantwortlichen für das PanAm-103 Attentat bestimmt und verurteilt werden...

    by Edwin and Mahnaz Bollier, MEBO Ltd., Switzerland

  2. I think you are correct Professor Black that only public and media pressure will move us forward. I get frustrated that some people start promisingly and focus on the doubts about Mr Megrahi's guilt but before they know it they are saying........."and anyway it was Blair who set up the PTA."

    I realise the need to get the lie, that Scotland just did this out of the blue, exposed but ultimately we are doing the worst thing possible by abandoning the doubts about his guilt to focus on the release.

    The main culprits there, astonishingly not just in the US but in the UK are politicians. I have had two responses so far from local representatives here who will not touch the issue of a possible miscarriage of justice. They wish to stay within certain boundaries: on the release they claim it is all down to the "SNP Government" and on the miscarriage of justice "Mr Megrahi chose to abandon his appeal so that's that then." More of less.

    It is bizarre to say the least that these politicians take such a view. Sometimes you can follow policy on a certain issue and see the natural progression involved but there is no natural progression whatsoever here. They are simply stonewalling all questions regarding that original verdict. We have to keep reminding them that yes Mr Megrahi did indeed drop his appeal but we still have the original formal declaration by the SCCRC that there was a possibility that there had been a miscarriage of justice.

    In going back to all of these people I am grateful for the fact that the archives of this site are a veritable treasure trove of priceless information which is extremely useless to beat them around the head with.

  3. Prof Black, could you correct my last post please? I meant to type "useful" in the last sentence and I typed "useless"! A thousand apologies.

  4. Jo, your comments on this blog are valued so much that I'd have forgiven you even if I'd thought you meant it!

  5. I can't agree that "not proven" would have been an appropriate verdict in this case. First, too many people regard that as "we know you did it but the evidence wasn't quite good enough for 'beyond reasonable doubt'." This would have been a terrible verdict politically. Second, as I think I explained, the evidence supported a "not guilty" verdict. He didn't buy the clothes and there was no bomb suitcase at Malta airport. End of argument. Next case please.

  6. I would never venture an opinion on the verdict of 'not proven' on the blog of a professor of Scottish Law! That's just asking to be trussed up like a chicken... Suffice to say, (according to 2005 Scottish Court statistics) 19% of persons aquitted received this verdict (I wonder how many of those were Jo Beltrami's?). However, if it's 'good enough' for us lot - then why not for foreigners being tried under Scottish Law. It's all water under the bridge now I suppose.

  7. Ah, I took care that my opinion matched what seems to be Prof. Black's opinion before I ventured out with it.... :)

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  9. It's still just an opinion Rolfe. I can see why such a verdict wouldn't have been well received politically but it was still an option. I'm not mad about the Not Proven option either but it would have been better than the outcome we did get if the Judges weren't going to have the courage to go for all out Not Guilty.

  10. Speaking generally, and with no reference to the Lockerbie case, I like Not Proven as a verdict. Indeed, if I had my way, Not Guilty would be abolished and Not Proven would be the only acquittal verdict. This is because what juries (and judges where there is no jury) are asked to do is to decide whether they are satisfied, beyond reasonable doubt, that the prosecution has proved that the accused committed the crime charged. If they are not so satisfied then their verdict should be "No, the prosecution has not proved the accused's guilt to our satisfaction" or Not Proven. In countries with no Not Proven verdict that is precisely what most verdicts of Not Guilty actually mean. It does NOT mean (as tabloid journalists are forever telling us) that the jury was satisfied that the accused did not commit the crime. It simply means that the prosecution evidence did not convince them beyond reasonable doubt that he did. That, and no more than that, is what juries are told to decide.

    However, none of this is well understood by the general public, even in Scotland, let alone the rest of the world. Which is why the judges decided that in no circumstances could such a verdict be returned in the Lockerbie trial, and the verdict in respect of Lamin Fhimah was Not Guilty even though the judges' explanation bases it on the Crown's failure to prove his guilt and Not Proven would accordingly have been a more accurate reflection of what they decided.

  11. This is a very interesting statement Prof Black. I can fully understand where you're coming from too actually. The Jury's duty is to convict on the grounds that the prosecution has established guilt beyond all reasonable doubt so the opposite of that is, as you say, Not Proven. I have never thought of it like that before.

  12. Well maybe better not let an engineer redesign the Scottish judicial system – if I had my way the defendant would come out with a percentage degree of innocence 0 thru 100% which would feed directly into the sentence calculator. This number would be arrived at analytically by the judge using Bayes Theorem…and despite this being a whimsical idea, I was later surprised to discover there is research based on the summation of weightings using this method. One day we will get rid of this integer world!
    Q. If it had been a jury trial would we have got the (same) document of Opinions from Lord Sutherland, or whoever presided?

  13. No, we wouldn't have got such a document. But what we would have had is the presiding judge's charge to the jury, telling them about burden and standard of proof, corroboration, the presumption of innocence, etc. It was the Zeist judges' failure themselves to heed the standard instructions given by judges to juries that led them to convict. No jury loyally following those standard instructions could have done so.

  14. I'm assuming all you Edinburgh punters are getting along to see the Fringe production, "Lockerbie: Unfinished Business" ? And Rolfe, no heckling them with the facts!

  15. I believe my ticket has been booked!

    I agree with Prof. Black, for what my IANAL opinion is worth. I'd prefer "not proven" to be the sole "not guilty" verdict, because that's what it is. No jury is expected to say, we categorically find you are whiter than the driven snow. Even if you are. Only that the case against you has not been proven.

    The problem is the two-tier verdict, with some people getting "not guilty" and some getting "not proven". This leads (inevitably in my view) to the perception that the "not proven" verdict is in some way an allegation of "guilty but only on a balance of probabilities level".

    I believe this is iniquitous. I also believe that using that verdict at Camp Zeist, with that connotation attached to it, would have been politically disastrous.

  16. Rolfe, but it shouldn't have been about getting it right politically. Why would it have been politically disastrous?

    That's the whole problem with that particular trial. Megrahi's basic rights were denied him simply because of the need to get a "politically" acceptable verdict. There was no jury because it was thought a fair trial couldn't be delivered. Did the Judges do any better? It appears not. Judges didn't do the tests Prof B has outlined above which all juries are required to follow before reaching a verdict. Because it was a political trial. Glaring flaws were exposed and ignored in order to get the right verdict. It is simply appalling and deeply shocking.

    The Prof has also pointed out that many of the problems associated with the "Not Proven" verdict are down to our failure to understand what a trial is about: it is about decided whether the prosecution has made its case or not.

  17. I think it would have been disastrous because whatever "not proven" really means, it is widely believed to mean "guilty on the balance of probabilities" (but not "beyond reasonable doubt"). To bring in a verdict capable of that interpretation would have caused a storm that we'd "let the terrorist off".

    If there wasn't enough evidence to support a guilty verdict, which there wasn't, the judges should have had the guts to bring in "not guilty" and avoid any suggestion of hedging their bets. And that's the verdict that evidence should have produced anyway.

    What the Prof has not yet explained is why on earth we have a "not guilty" option. I know why it happened historically, but that doesn't explain what utility it has in the legal process.

    If the case isn't proven, it isn't proven, and that should be the end of it. I cannot understand the reason for having a "super-not-proven" category of "not guilty". All it does is cast doubts on the "not proven" convictions to the effect that these people have been tacitly labelled as having probably committed the crime, but the evidence was just marginally insufficient to prove it beyond reasonable doubt.

    I don't believe any other jurisdiction has two categories of "we're letting you off because of insufficient evidence" and "we believe you didn't do it" like this. Like it or not, that's how it comes over in practice, and that's why I think "not proven" would have been a seriously bad move at Zeist.

  18. No, what we had there was the case hasn't been proven but we're finding you guilty anyway.

  19. Well, of course, that's what actually happened.

    However, we're talking hypotheticals here. It has been suggested that the "not proven" verdict might have been an appropriate one, if the judges had decided not to convict. I'm putting forward my view that this would not have been appropriate in that situation.

    First, because it would have been unwarranted. Proper scrutiny of the evidence reveals no reason at all why a "not guilty" verdict would have been inappropriate.

    But also second, because of the connotations of the "not proven" verdict, whether correct or not. I appreciate Prof. Black's point, and I'm with him on believing that the single non-conviction verdict should be "not proven", and dump this "not guilty" nonsense. However, we are where we are, and it's very difficult to refute the assertion that having two classes of non-conviction verdict distinguishes between those found to be genuinely innocent and those against whom serious suspicions still remain.

    Not only would it have been incorrect to bring in a verdict widely seen as being in the latter category, it would have been politically disastrous. You know and I know that the "not proven" verdict is often jocularly referred to as "off you go and don't do it again". Can you imagine the world's press if such a verdict had been brought in on the "Lockerbie bombers"?

    The judges should have had the guts to bring in a not guilty verdict, and to have done that even if they felt there were still some doubts surrounding the evidence (which I don't believe thre were, I said IF).

  20. Sorry Rolfe, I cannot go with that phrase you keep using, "politically disastrous". Politics does not belong in a trial full stop. The Judiciary remember is supposed to be utterly independent of government yet what we got was a political verdict despite the evidence presented which just didn't support a guilty verdict. (We know they aren't independent of government really but it is how it supposed to be in law.)

    You keep on about hypothetical situations. This isn't a hypothetical issue we're talking about. We're talking about facts. And I think "Not proven" would have been actually a very fair and balanced judgement.

    Prof B has pointed out that it is our misunderstanding of the term, and the media's, which causes us problems. The prosecution did not prove its case and the information available to us shows this conclusively. The verdict in the end absolutely WAS political.

    I also don't think any judge should go for "Not Guilty" if they have doubts, again I think they should go for "Not Proven". The more I've thought about this since Prof B explained how he personally feels about our verdict set-up the more I agree with him that we should have two verdicts based on the question, "Did the prosecution prove it's case, yes or no?" followed by the answer, "Proven" for yes or "Not Proven" for no.

  21. I agree with your last paragraph, totally and utterly. We should have two verdicts, and while it probably matters little what we call them, proven and not proven describe the legal situation much better than guilty or not guilty. IF that were the situation, then of course "not proven" would have been the right verdict.

    But that is a hypothetical. We have three verdicts available, like it or not (and I don't). And in the real world we're actually living in, the "not proven" option carries in the minds of the public the connotation that there are doubts about this person's innocence.

    I think this is totally invidious. Sure, it happens, people who seem quite likely to be guilty but against whom the case cannot be proven beyond reasonable doubt, are acquitted. This happens all over the world. We seem to be about the only country that sees fit to label such people officially, as "probably guilty but bloody lucky".

    You can talk about misunderstanding until you're blue in the face, but that's how it actually is - the perception is what counts. And you yourself said, a judge should not go for not guilty if they have doubts. So, you think it would have been appropriate in this case for the judges to have gone for a verdict that said, well, we're quite dubious, actually we think he might have done it, but off you go.

    I can't agree. This verdict is not an option in other countries, and this was a case of international importance. The reporting of such a verdict abroad would have been highly damaging. Scots say Megrahi probably did it, but they're letting him off!

    In every other country in the world, so far as I know, a case that does not result in a conviction gets a single "end of story" verdict. Even if there are lingering doubts, these are not officially reflected in the verdict, nor should they be.

    "Not proven" would have been highly inappropriate in this case, firstly because on a true reading of the evidence, if these are "doubts", then you might as well junk the "not guilty" verdict entirely because no case will ever reach that dizzy height. And second, who needs the grief of the international headlines reading, "he did it but the Scots have let him off on a technicality".

    In order to justify the not proven verdict as things stand at present, you have to justify being the only country that chooses to acquit accused persons with a verdict that is percieved as saying, "we think you probably did do it, sonny".

    Bad thing.

    The trouble is, we've got this under our skin as a peculiarly "Scottish" thing we're proud of, and defend, even though it's entirely invidious. A bit like sealed bids for house purchases. Oh yes, that's how we do it here, we're not the English! It's barking mad, but let's hold on to it because it makes us feel special or somthing.

    It's far less important what we call the "you're free to go" verdict, than getting rid of this invidious 2-tier system that labels some people as "guilty but let off". I can't imagine a worse situation to use that option than at the Lockerbie trial.

  22. You haven't convinced me Rolfe, but we're going in circles. You have just re done your argument based on what we (wrongly) think Not Proven means.

    Perhaps the answer to international outrage at the time (had a Not Proven verdict prevailed) would have been for the legal establishment to explain it to all of us, and the international community, in the way the Professor has to us in this thread. I can only speak for myself but that simple explanation has clarified something for me that I have been confused, and misled, about for years. So perception can be dealt with and is, for me, less important than having a verdict which truly says exactly what it means. Perhaps the Establishment needs to get to work on that.

    And by the way, I wouldn't have the English system of buying property. I have a number of English friends who would not recommend it either.

  23. I don't think the question of "not proven" has been clarified. What is the difference between not proven and not guilty, if it isn't that in the former case there is doubt about the innocence of the accused? I think this is an invidious distinction to make, and that in fact the public perception of the situation isn't as far off the mark as you suggest.

    I think that in the Lockerbie case in particular, to have chosen a verdict that indicates doubt about the innocence of the accused, would have been a very bad idea - especially when this is not a verdict other countries have available. There is no good explanation of the two-tier system, other than to agree that the not proven verdict indicates significant doubt about innocence. Whatever you say after that, you're the country that believed these guys possibly/probably did it, but let them go.

    Also, I didn't say I thought the English system of conveyancing was a good idea. I've bought and sold houses in England, and it sucks. What doesn't suck is having the opportunity to negotiate the price with the seller, rather than to have a single, blind, bite at the cherry. That's why I said "sealed bids" - that part is a nonsense, but hey, it's our nonsense, so we want to keep it.

  24. Rolfe, Prof B explained the Not Proven verdict. I understand it better now. I think had it prevailed at the trial the Judiciary could have explained it pretty well too afterwards. They could even have asked Prof B to help! If he did half as good a job as he's done on this thread I'm sure there would have been no problem.

    Apart from that I'm dizzy from going in circles so I'll leave it at that.

  25. We seem to be interpreting what Professor Black wrote in two different ways. Every time I read what he wrote, I find myself in perfect agreement with it. It does not, however, touch on the matter of how the difference between a verdict of "not proven" and one of "not guilty" is to be interpreted under Scots law as it stands, which is what I was talking about.

    But let's not argue about it, hypotheticals aren't worth it.