Wednesday, 15 September 2010

Lord MacLean on Lockerbie

[Accompanying its article on the report of the inquiry into the murder of Loyalist Billy Wright by Irish National Liberation Army prisoners at the Maze Prison in 1997, The Scotsman runs a brief profile of the retired judge, Lord MacLean, who chaired the inquiry. It reads in part:]

The retired Scottish judge who chaired the inquiry was one of the judges who convicted Abdelbaset Ali Mohmed al-Megrahi of the Lockerbie bombing.

Lord MacLean sat with Lord Sutherland, Lord Coulsfield and Lord Abernethy when they found Megrahi guilty of mass murder. [Note by RB: Lord Abernethy was a substitute, who took no part in the decision. He would have had a role to play only if one of the other three died or became incapacitated in the course of the proceedings.]

An Old Fettesian, Lord MacLean, 71, has been a staunch defender of the decision, once saying: "I have no doubt, on the evidence we heard, that the judgments we made, and the verdicts we reached, were correct."


  1. A little bit of me wonders what Lord Abernethy thinks!

  2. Probably much the same as the other three - we need to convict at least one of the Libyans to satisfy our political masters to prevent compensation demands from Libya for the sanctions imposed, which caused the Libyan people severe hardship, deaths etc. Also, of course, having a Libyan in jail would be an extremely useful device for future leverage.

  3. How appalling the verdict is, I find it likely, that the judges were in some kind of good faith.

    It is a well-documented - and trivial - psychological fact that people with a strong incentive to reach a certain conclusion will be likely to see things through tinted glasses. We are all victims of this (some more than others, of course), regardless of what we may think of ourselves.

    Lots of experiments exist, where our ability to lie to ourselves are demonstrated.

    The mind is expert in avoiding a confrontation with internal conflicts and the 3 trial judges will have had every reason to support each other.

    The less people to decide, the higher the risk. In a jury of 12 people the chance is smaller.

    But matters are not worse, than people, when met with a qualified confrontation, can change their mind, something I have seen many times in my own life.

    Such confrontations are often painful, and will be avoided.

    Statements like "I have no doubt, on the evidence we heard, that the judgments we made, and the verdicts we reached, were correct" are easy to make.

    It is much harder if somebody asks questions like "Given your words about payment as motivation for perjury when discarding Giaka's testimony, would you not have had reasons to think likewise, if you'd known that Guaci was to receive millions of dollars?"

    Or "SCCRC says, about the date of the purchase of the clothes, 'there is no reasonable basis in the trial court's judgment for its conclusion'. Here are the trial transcripts, the meterological officer stating that there is a 90% chance that it did not rain that day, and also the statements about the Christmas lights... Can you explain why you still reached the conclusion that..."

    But AFAIK they have never allowed themselves to be confronted that way.

    For the trial judges I assume Lockerbie was the main professional event in their life. Somewhere they will know they did a poor job (with regards to justice) but they will die convincing themselves that they lived up to their responsibility.

    We can only pray that we would be different ourselves, but we are not to know our own shortcomings.

  4. "We can only pray that we would be different ourselves, but we are not to know our own shortcomings."

    sfm, indeed, however that was the reason this was not a trial by jury. Us lesser mortals were considered too likely to judge without balance and without regard for the evidence. We were felt to be unable to stick with the job in hand, to convict beyond all reasonable doubt, based on the evidence put before us.

    These learned judges weren't thought to be like the rest of us. They were supposed to be above all that. They were knowledgeable in the law and also knew backwards the definition of that phrase, "beyond all reasonable doubt" and yet they set all of this aside and convicted in the face of evidence which contradicted their judgement quite clearly.

  5. Us lesser mortals were considered too likely to judge without balance and without regard for the evidence. We were felt to be unable to stick with the job in hand, to convict beyond all reasonable doubt, based on the evidence put before us.

    That's not how I read it, to be honest.

    I understood that the jury trial (it should have been 15 jurors, sfm) was resisted by the Libyans in the belief that the sheer enormity of the atrocity that happened at Lockerbie would so cloud the judgements of ordinary Scots who'd seen all the horror pics that they wouldn't be able to assess the evidence fairly from the point of view of the accused. We were felt to be too susceptible to the emotion of "we have to convict the bastards" to weight the evidence disinterestedly.

    In fact I think it was a bad miscalculation. The finding of a guilty verdict from that evidence required the application of the sort of sophistry I think the average juror is incapable of contemplating. I think a jury would have been prepared to tell the CIA to go raffle itself and take its cables with it.

    Of course, the correct interpretation depends on which side it was who was pushing for the non-jury trial. I always understood it was the Libyans, who believed judges would be more able to be dispassionate than ordinary Scots shocked by the carnage. Bad mistake, really. However, if I'm wrong about this, or if the truth is a lot more nuanced (maybe the prosecution was thrilled to bits to agree to a non-jury trial, perhaps?), maybe Prof. Black will put us right.

  6. Here (from an old article of mine) is the background to the scheme for a non-jury trial:

    " was indicated to me that the Libyan government was satisfied regarding the fairness of a criminal trial in Scotland but that since Libyan law prevented the extradition of nationals for trial overseas, the ultimate decision on surrender for trial would have to be one taken voluntarily by the accused persons themselves, in consultation with their independent legal advisers. For this purpose a meeting was convened in Tripoli in October 1993 of the international team of lawyers which had already been appointed to represent the accused. This team consisted of lawyers from Scotland, England, Malta, Switzerland and the United States and was chaired by the principal Libyan lawyer for the accused, Dr Ibrahim Legwell. The Libyan government asked me to be present in Tripoli while the team was meeting so that the government itself would have access to independent Scottish legal advice should the need arise. However, the Libyan government expectation was clearly that the outcome of the meeting of the defence team would be a decision by the two accused voluntarily to agree to stand trial in Scotland.

    "I am able personally to testify to how much of a surprise and embarrassment it was to the Libyan government when the outcome of the meeting of the defence team was an announcement that the accused were not prepared to surrender themselves for trial in Scotland. In the course of a private meeting that I had a day later with Dr Legwell, 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, 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)."

  7. Take the Billy Wright Inquiry: 5 years and £30m to find that the Maze failed in its duty of care. Doh! We knew that. We also knew that he had been murdered by the other side. Nobody was disputing those things. Cory's Parliamentary report basically gave the answers to the questions the inquiry was supposed to go away and uncover: namely collusion. Yet MacLean narrowed the terms so it didn't ask about collusion, let the police away with destroying documents that were incriminating (obviously) - and did not really censure them for hiding a whole secret document control system containing pertinent evidence (!) and allowed key witnesses to not attend or even submit affidavits because they were too 'ill'.
    Pure joke these inquiries - gravy trains for the establishment who fail to do their jobs correctly in the first place.

  8. Let's really not bring NI into this. Collusion abounds in NI from the murder of the terrorist Billy Wright to the murder of the non-terrorist lawyer Patrick Finucane. Fact is the UK security forces colluded with everyone available when it suited. Different subject, different blog I suspect. Let's keep it separate from this.

  9. Can I also add at this point that I think terrorists were active in NI on both sides and that I despise all equally. Incidentally they still ARE active and on both sides but, as I said, different blog, different issues. What all blogs have in common is that the British view of "justice" is twisted and, often, complete crap.

  10. Just checking whether it's RB's blog...yes, it is, confused me there for a minute. I thought I was on a blog I would not visit.
    Now just checking whether RB mentions Billy Wright...yes, RB mentions, Billy Wright.
    Good, now finally, just reminding myself, that it's okay to comment in a blog where the blogger invites comments on things he's said in his blog....yes, that checks out too.

  11. Of course its ok to comment. Its also ok for others to comment. : )

  12. Oh and Blogiston, who are "the other side" incidentally? What side were the "British" on given the evidence that the "British" colluded with both "sides" in their enthusiasm to be rid of certain people on either "side" who were bothering them at the time!

  13. ...........which is why its better if we discuss Lord MacLean and Lockerbie rather than getting into the Billy Wright stuff.............and all that goes with it.

  14. blogistan,
    What you describe in the Billy Wright inquiry shows exatly how judges manipulate not just inquiries but trials etc to serve the Establishment.
    Often their nefarious actions are sychronised with the prosecution and even the defence.
    In the High Court in London various judges act in this way to hide state crime.

  15. Jo G: The other side from Billy Wright, of course.

    Ruth: I agree with you 100%. And maybe that's why Lord MacLean was asked to conduct the Bily Wright Inquiry.

  16. I don’t buy into the idea that the trial judges were deliberately corrupt. Rather what we had here was a group of three oldish males all from the same extremely narrow social and educational background, living near to each other, lunching together almost daily, total establishment creatures who would have seen matters from exactly the same viewpoint. Add in that Scottish judges, unless they have previously been Sheriffs (and I think none of these had been) have never had to decide the facts in criminal cases.

    Realistically I don’t think they, with the eyes of the world on them, were capable of the independence of mind required to accept that the Crown and/or its backers in the US had been faking evidence.

    No jury meant no charge to the jury. Preparation of the charge provides a disciplined framework for the legal analysis of the prosecution case. Had that been done the weaknesses of that case should have been obvious.

    And of course when the first appeal happened they were asked for the conventional trial judge report, but were unable to supply it. Sometimes a trial judge states in his report that he disagreed with the jury. That possibility was of course denied to the appellant in this case.

  17. Ewan, I'm not sure what with some of the things we see. As Blogiston points out look at the money the establishment spends going through the motions of being seen to investigate certain things when most know the answers they come out with at the end are complete nonsense.

  18. I'm very much in sympathy with Ewan's take on it. It's far too easy to shout corruption, or political pressure, but it's not usually like that.

    Old establishment farts can be remarkably insular in their outlook. And working from the mindset that whatever they decide is by definition right. Add the legal issues Ewan outlined, and I think it's far more plausible than anyone being deliberately leaned on.

    Juries can produce perverse verdicts too of course. But if there ever was a case that points up the virtues of a jury trial system, this is it.

  19. Judges are out of touch and the very epitomy of establishment conservatism. Maybe that is why they are always portrayed such in comedy where they are invariably lampooned.

    However, they are given power. And that power is unchecked and unregulated - remember, no one judges the judges (other than other judges?). Power does indeed corrupt - albeit, sometimes not consciously. And not always for private gain. There never will be a tacit agreement (as per collusion) to pre-determine the outcome of a case or an inquiry. But the judges 'feel the vibe'. They are not disinterested about maintaining their careers. They also set themselves above the public - because they have been given the arcane rights. In the case of public inquiries, especially, they rarely pay heed to the public part of that two word entity. The public do not want to read a three page dissing of how Cory's definition of the word 'collusion' was perhaps a little wide. The public do not want to see the police wriggle out of giving evidence and only easier targets shouldering all the blame.
    The public want to see previous wrongs righted and are largely sympathetic and understanding if there are good reasons why that cannot be achieved - simples!

  20. Ewan and Rolfe.
    You are wrong about judges not deliberately manipulating cases. I do not mean all judges and I do not mean that judges who do act corruptly will manipulate all cases. They will act corruptly in cases where there are overriding state interests. For example in a criminal appeal they might in their decision omit reference to a substantial ground restricting their judgment to the weaker ones. They might refuse witnesses. They might twist evidence. There are all kinds of tricks.

  21. I think this trial proves conclusively that something, whether we call it corruption or not is up to the individual, was wrong, seriously wrong, with the manner in which the verdict was arrived at. Bluntly, conclusions were reached which the evidence contradicted. Yet those deciding, whether previously sheriffs or not, were surely capable of seeing this and if not, why not?

    I have to say I understood why some might thing a non-jury trial would be fairer to the two accused. I have served on Glasgow juries several times. I found it shocking that so many there were absolutely lost in the proceedings (and they weren't complex)and utterly at sea with the whole thing. I found that terrifying and was mightily relieved I was part of the jury and not in the dock with my fate in the hands of some of these folk. I'm not convinced Megrahi and his co-accused would have had a fair hearing from a jury either.