Monday, 1 June 2015

A jury would not have convicted Megrahi

[What follows is excerpted from an item published on this date in 2009 on the Lallands Peat Worrier blog:]

On entering Edinburgh University’s School of Law in 2004, my first lecture was delivered by Professor Robert Black QC, and concerned the trial of Abdelbaset Ali Mohmed Al Megrahi. Convicted by a three judge panel in Camp Zeist, the Netherlands, anyone with half an eye on Scottish justice issues will be familiar with the extensive legal and political controversy surrounding the trial. Robert Black is convinced that – abstractly guilty or not – legally, Megrahi should not have been convicted on the evidence lead against him, beyond the standard of reasonable scepticism required. He has kept and continues to update a blog on the Lockerbie Case here.

Privately, other senior figures in the legal profession have suggested to me that, to their minds, a jury would not have convicted Al Megrahi on the evidence presented to the Court in the Netherlands. Implicitly, it is being suggested here that judges Sutherland, McLean and Coulsfield yielded to an inchoate sense of pressure, putting aside their doubts and convicting Megrahi. On either question, I am not particularly qualified to answer, not having reviewed the evidence. I simply report that it is a prevalent view in the dusty corridors of Scottish legal discussion.

Of course, we should bear in mind that other jurisdictions habitually try criminal cases employing only judges. Appeal courts regularly set aside lower courts findings of fact. The criticism implied by changing decisions or substituting a different ruling on appeal is undoubtedly less sharp when it is simply a general fact of legal life. Scotland is different. The exceptionalism which saw Megrahi tried without a jury seems to have erected barriers of embarrassment. In its structure, the High Court of Justiciary is collegiate. To recognise that one’s colleagues “got it wrong” would be dreadfully to undermine the whole College of Justice. Better to encourage quietism, and leave Megrahi where he is. So, in half-articulated whispers and furtive conversations, some suggest the "Lockerbie problem" should be dispensed with.

This is Denningprinzip, a haunting refrain recalling the much overrated Alfred Denning, who suggested in McIlkenny v. Chief Constable of the West Midlands[1980], dismissing allegations of police brutality against the “Birmingham Six” that we should all:

“Just consider the course of events if this action were to go to trial … if the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose. If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous. That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal … This is such an appalling vista that every sensible person in the land would say: it cannot be right that these actions should go any further. They should be struck out.”

A vile canon for judicial action, that, which gnaws at the very bowels of the rational basis for our regimes of legal regulation. 

[At the time, I commented on this blog: “The anonymous author apparently attended a lecture by me in The Edinburgh Law School in 2004 and -- which must be unique -- remembers it.” I am happy to report that the author is no longer anonymous. Andrew Tickell is now a lecturer in law at Glasgow Caledonian University, continues to blog knowledgeably and entertainingly, and contributes to print and broadcast media on legal and political matters.]


  1. As I have posted before, the late and much respected Sheriff Peter G B McNeill once told me that had he tried the case he would have upheld a defence submission that there was no case to answer. Because of this view, which he said he had communicated to the SCCRC he had declined their invitation to join.

  2. This just confirms my respect and admiration for Peter McNeill -- a fine lawyer, a fair judge, a scholarly historian and a gentleman. I have never been able to understand why Megrahi's lawyers at his first appeal declined to argue that (after the court's dismissal of the Giaka evidence) there was insufficient evidence in law to warrant conviction. It will certainly be argued if the current application to the SCCRC results in a further appeal.

  3. "Sheriff Peter G B McNeill once ... would have upheld a defense submission that there was no case to answer."

    Again, we see how weak and arbitrary a matter justice is. The contrast between 'no case to answer' vs. 'guilty beyond reasonable doubt' is so screaming that you'd think that both statements could not have been made by sane professionals.

    I recall learning in school, that 'we will rather let ten murderers walk than convict one innocent'. This little boy believed it at the time.
    Reality is, that we allow for a number of convictions of innocents to have the system 'working'.

    We should be happy for the historically infamous words by Denning, which shows how madness can grow in heads of these people who may meet insufficient challenge and lose contact with the ground.
    He deserves praise for honestly expressing a view, that your entire judicial top seems to live by, but would never admit to.

    Justice has huge elements of dirty business and politics.
    People will need to realize that before we can expect matters to improve.

    Unfortunately it seems that the politicians, the judicial system and the press are more happy with status quo, and that the vast majority of people don't see it as something important.
    Something that really surprises me.

    1. One factor operating as regards "the vast majority of people" is the presumption of guilt. You only have to look at the Lindy Chamberlain affair to see how this works. Someone is judged guilty in the court of public opinion, and thereafter everything they say and everything they do is judged to prove their guilt. They cry too much. Or not enough. They called the police. They didn't call the police. And so on. Sometimes you feel like screaming, is there anything this person could have done in that situation that would have made you consider the possibility that they might not have been guilty?

      More recently we have Amanda Knox and Raffaelle Sollecito, now thankfully acquitted after an appeal court looked at the entire mess and said, this is ridiculous, not guilty. The internet is still groaning under the weight of blogs and forums dedicated to monstering these two young people. Right now we have Mark Lundy, apparently convicted on the grounds that he was a fat, unattractive slob, because it seems quite impossible that he could have killed his wife and daughter that night.

      The US relatives in the Lockerbie affair are in the same category. We presume guilt, and please don't ask us to reconsider anything on the basis of actual facts.

      I've heard of judges who fervently believe that only guilty people are ever brought in front of the bench, and some simply have to be set free because unfortunately the evidence is lacking in some way. But they still actually did it. They must have done, or the police wouldn't have charged them.

      One of my favourite emails ever is from someone who had spent some time sniping at me in an online forum, mocking any submission I made questioning Megrahi's guilt. He must have bought the eBook of my book as soon as it became available, because he sent me a message within a couple of days entitled "I was wrong". He apologised very handsomely, saying that he had once been a policeman and held law enforcement authorities in high regard. His default position was to believe the courts got it right. However, having read my book he realised that wasn't the case with the Lockerbie conviction.

      The strange thing about that is that the chap in question is Australian, and knew all about the whole Lindy Chamberlain thing. He just thought it had been a complete one-off aberration. The trouble is, it wasn't.

    2. You clearly have a strong point there.

      The amount of people willing to grab an opinion based on whatever is simply scary.
      You will in any case find people who will feel absolutely certain. In their eyes there is no doubt, and there are often very simple and obvious reasons. I know in person quite a number of people who are 110% certain that the collapse of the Twin Towers could never, ever, be a result of the planes' impact and the following fire.

      I remember the Chamberlain case very well. Again we had a scientist who was willing to carry her test into the real complicated world.

      Similar to the Lockerbie case, in the trial, we have endless nonsensical dialogues, trying to construct evidence where there is none.
      This may be the way justice has to work. To me it is totally irrational. Is there any good reason why this should lead to correct conclusions, and not just confusion? That streams and streams of word somehow should crystallize as truth in our brains?

      It dilutes the time. At this trial there was a very critical statement: 'foetal blood' being detected everywhere in the car. This is of course crucial.

      Drop all the talks and get this established beyond reasonable doubt. This was dealt with later - a simple matter of real-world false positives. Even worse, the reporting by the scientist turned out to have been very selective.

      For whatever reason, people tend stick to their beliefs. I suppose this is true for all of us. Confirmation bias.
      Happy that you saw an exception that confirmed the rule.

      - - -

      "I've heard of judges who fervently believe that only guilty people are ever brought in front of the bench.."

      In the Schapelle Corby case it was indeed interesting that none of the three judges, in hundreds of cases, had ever acquitted a single defendant. This does of course not say anything about her being guilty or not - but it seems like Indonesia could let the police to the sentencing instead, and save the high salaries of the judges.