Friday, 15 November 2013

Error, incompetence and complacency compounded by competing political agendas

[The current issue of the Scottish arts magazine The Bottle Imp, which is devoted to articles on law and justice, features a truly magnificent long essay by James Robertson entitled Slavery, Terrorism, Law, and Justice.  This should be compulsory reading for law students, lawyers and judges in Scotland and elsewhere -- indeed for anyone with an interest in the function of law in society and how a novelist can in his work cast light on the most fundamental issues of law, truth, justice and judicial administration.  The essay reads in part:]

Three of my five published novels prominently feature court scenes. The first of these, in The Fanatic, is the trial of James Mitchel in 1678 at the High Court of Justiciary for the attempted assassination of James Sharp, Archbishop of St Andrews, ten years earlier. The second, in Joseph Knight, focuses on the case of Knight v. Wedderburn, heard before the Court of Session in 1778, and the question of whether a slave owed 'perpetual service' to his master. The third, in The Professor of Truth, is the trial of Khalil Khazar for allegedly planting a bomb which destroyed a plane flying from London to New York.

All three novels have their roots in real events; but unlike The Fanatic and Joseph Knight, The Professor of Truth shadows rather than explicitly reproduces the events which inspired the fiction. While the Lockerbie bombing of 1988 and the subsequent trial and conviction of Abdelbaset al-Megrahi in 2000–01 are unmistakably paralleled in The Professor of Truth, there is no mention of Lockerbie, Megrahi, Malta or Libya in its pages. Because Lockerbie is very much unfinished business, a story that is far from complete, I felt a need to distance my fictional exploration of the event and its aftermath from the reality which inspired it. The Professor of Truth is therefore more abstract in its approach to questions of law and justice than the other two novels. However there are interesting similarities, in terms of subject matter, between The Fanatic and The Professor of Truth: terrorism and its possible justification; the measures to which the state and its functionaries may resort in order to bring a suspect to trial and secure a conviction; the interaction of truth, justice and law. (...)

Even at a distance of more than 300 years, there is little doubt that, however unsavoury the methods used to bring him to the scaffold, James Mitchel was guilty of attempting to kill the Archbishop of St Andrews. Much greater uncertainty surrounds the conviction of Abedlbaset al-Megrahi for the Lockerbie bombing in December 1988. What drew me to write about the Lockerbie affair was a concern — which began during the trial of Megrahi and his co-accused Lamin Khalifah Fhimah and was reinforced by revelations and developments subsequent to the trial — that a miscarriage of justice might have taken place.

Two factors made me decide to write a novel based on this huge and unfinished story. First, an enormous amount of non-fiction material already existed on Lockerbie, in the form of journalism, legal and other expert opinion, documentary film and official records both on paper and on-line. Second, fiction is my craft, and I felt that through a novel I could explore some of the key questions that always attach themselves to such big events. What is truth? What is justice? Where do these ideals coincide with the application of the law? And what happens to a human being who not only loses his loved ones in an act of terrorism, but also has to contend, for more than twenty years, with the belief that an innocent man has been found guilty of their murder?

As a novelist, I am of course interested in the idea of narrative. When I set out to write a novel, I know the intended narrative direction but not the precise route, and usually not the destination either. Over several drafts, the route is explored and mapped, but this always involves deconstructing, rewriting, discarding or adding material. Sometimes dead-ends open up, sometimes through-roads turn into dead-ends. Eventually a destination is reached which, one hopes, is a fitting one for the constructed narrative. But the narrative can also be trimmed and adjusted to fit the destination and if this is done with enough skill the reader may be persuaded that the narrative always led naturally to that destination.

This is not so very different from what happens when investigators or prosecutors construct a narrative of events that will result in someone being found guilty of a particular crime. In my view what went wrong with the Lockerbie case was that error, incompetence and complacency on the part of the police, the Crown Office and others, were compounded by competing political agendas (including international ones) and immense pressure to secure a conviction. Instead of evidence being continuously tested to form a coherent and robust narrative of events, the supremacy of a particular narrative meant that evidence was advanced, ignored or even suppressed, in order to support and enhance it.

Here are two examples of how this could happen. The Crown's case was that the bomb which destroyed Pan Am Flight 103 over Lockerbie was loaded, in an unaccompanied suitcase, onto a plane at Luqa airport in Malta, transferred onto another plane at Frankfurt, and transferred again onto the target plane at Heathrow. This narrative was maintained by the prosecution and accepted by the court despite the complete absence of any evidence as to how the bomb was loaded at Luqa, an absence which the judges themselves described as 'a major difficulty for the Crown case'. Megrahi and Fhimah were jointly accused because between them they were supposed to have somehow smuggled the bomb suitcase onto Air Malta flight KM180 to Frankfurt. This was despite the fact that the Maltese airline had unusually strict baggage procedures, that it was proved that the number of bags in the hold exactly tallied with the number of bags checked in, that no suspicious activity was reported around the plane and that no evidence was produced of any Air Malta staff having been corrupted. The Crown case was that Megrahi must have had assistance from Fhimah, a station manager for Libyan Arab Airlines at Luqa, to get the bomb suitcase airside, but Fhimah was acquitted. No explanation was ever advanced as to how Megrahi, without Fhimah's help, managed to get the bomb onto Flight KM180.

By contrast, a suitcase answering to the description of the bomb suitcase was witnessed by a luggage handler at Heathrow airport, where airside security in 1988 was extremely poor compared with security at Luqa. This suitcase (brown, with a hard shell, 'the type Samsonite make' according to the witness) was seen waiting to be loaded onto Pan Am Flight 103, in the luggage container in which the bomb later exploded, and very close to the position where the explosion took place. The witness was, the judges said, 'a clear and impressive witness' who, moreover, volunteered this information without any prompting and before the information that the bomb was contained in a brown, hard-shelled Samsonite case was in the public domain. Yet, astonishingly — and despite a great deal more information suggesting that London was a far likelier point of ingestion for the bomb than Malta — the prosecution rejected this evidence. It is hard not to conclude that this was because it completely undermined the preferred narrative that the bomb originated in Malta and that the two Libyans were responsible for loading it there.

The second example shows how a preferred narrative can be enhanced by suppression of inconvenient information. It concerns a key witness, Abdul Majid Giaka, who worked for the Libyan security service (the JSO) but was also an informant to the CIA. It was Giaka who identified Megrahi as an officer of the JSO although this was never substantiated and the designation always denied by Megrahi. Giaka's evidence at the trial was crucial — indeed, without him it is unlikely that Megrahi and Fhimah could have been indicted at all. The defence lawyers wanted to see — and argued that to ensure a fair trial they were entitled to see — unredacted copies of twenty-five CIA cables detailing the CIA handlers' meetings with Giaka. They had got word that the Crown had secretly viewed these unredacted copies at the US embassy in The Hague, and believed that these documents might have a bearing on the reliability of Giaka's evidence. When asked about this by one of the trial judges, Colin Boyd, the Lord Advocate, who was leading the prosecution, replied that 'there is nothing within these documents which relate to Lockerbie or the bombing of Pan Am Flight 103 which could in any way impinge on the credibility of Mr Majid on these matters.' He appeared to be relying, in making this statement, on assurances from the CIA that it had disclosed to the Crown all necessary and relevant information. Counsel for the defence maintained that they should still have sight of the cables, and the judges concurred. Under pressure, much less redacted versions of the cables, and a further thirty-six cables, knowledge of which had been denied to the defence, were released. They conclusively showed not only that Lockerbie and related matters were specifically discussed by the CIA and Giaka, but that Giaka was a completely unreliable witness prepared to say almost anything in exchange for money and in expectation of a new life under a witness protection scheme. '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,' Richard Keen, defence counsel for Fhimah, commented. 'I frankly find it inconceivable that it could have been thought otherwise.' The clear implication was that the Lord Advocate had seriously, if unwittingly, misled the court.

There are many reasons, and more significant ones than these, for doubting the safety of the conviction of Abdelbaset al-Megrahi for the Lockerbie bombing. My purpose here is simply to illustrate similarities between narratives pertaining to crimes and the legal process around them, and narratives of novels. Here is what an entirely imaginary American intelligence officer says as he recalls trying to piece together the case against Khalil Khazar in The Professor of Truth:

'It wasn't just that we dropped irrelevant evidence, we suppressed things that were relevant but disruptive. Maybe the first time you do that it's some tiny, insignificant detail. Everything else fits but this one piece won't click home. You try it every which way. It just won't go, but if you trim it a little it will. Or maybe you don't trim it, you find something else that doesn't belong but fits better in the space. You put it in and it looks perfect and after a while you don't want to take it out. Then you have to get rid of the awkward non-fitting piece. You go through that process once, and the second time it doesn't seem such a big deal, and then you remind yourself that what you're trying to do is reach a destination and it doesn't matter so much how you get there, just get there. And there is urgency, pressure from above. So you keep going.' (66-67)

In another part of the novel, a lecturer in jurisprudence discourses on what really goes on in a courtroom. People confuse the law with justice, he says, evidence with the truth. In reality,

'[...] a courtroom is a venue for a fight between two sides, each trying to persuade a jury, or in this case the Bench, that an accused person did or did not do something. That's all it is, a fight. As in a boxing match, points are scored by delivering punches on target. It may even be that a knockout punch is landed. And when it is all over, one side wins. But the outcome of any trial is not that justice has been done, or that the truth has come out, anymore than the outcome of a boxing match is that the better, nobler, finer man has triumphed. Justice may have been done. The truth mayhave come out. But neither of these things is necessary in the application of the law. They are actually irrelevant.' (103)

That is one view. Perhaps one of the most valuable functions of fiction is that it can offer a variety of perspectives. Scott, who knew a thing or two about the law, articulated a less cynical view than the above through the character of Mr Paulus Pleydell in Guy Mannering:

'In civilised society, law is the chimney through which all that smoke discharges itself that used to circulate through the whole house, and put every one's eyes out — no wonder, therefore, that the vent itself should sometimes get a little sooty.' (chapter 39)

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