Holding the scales of justice

[This is the headline over an article published in Scotland on Sunday on this date in 1999. It reads as follows:]

Scots law is in the dock with Lockerbie accused, but fears are unfounded, argues William Paul

So it begins. The two Libyans accused of the Lockerbie bombing have appeared before the special Scottish court in the Netherlands and the process of justice according to Scots law must run its course in all its ponderous panoply.

If doubters still regard the whole affair as some kind of international cover-up, the sight of Lord Sutherland in his cream and crimson robes following the mace-bearer to a high-backed leather chair at a makeshift bench in the corner of an old American gymnasium should have clearly demonstrated that the politicians and diplomats are no longer in control. Any covert agreement brokered by the United Nations to limit the scope of evidence or ignore the more embarrassing past behaviour of a country’s security services is worthless. If it exists, as has been suggested, the signatories are fooling  themselves. Now that the law has taken over, unpredictability reigns and there can be no guarantees.

Last week in the Netherlands, the defence QCs at a preliminary hearing acknowledged they were "not arguing about points of fact, but points of law" as they attempted to have the first charge of conspiracy to murder dropped from the indictment. To support their argument and establish a definition for conspiracy they cited two cases – one was the man who threw his wife off Salisbury Crags before trying to collect the insurance money, the other was the sale of some dodgy Harris Tweed. To a layman in the court, the impression was slightly surreal as the accents of educated Scotland earnestly debated whether the alleged crime of conspiracy was complete when conspirators first conceived it, or when it reached its climax in the destruction of Pan Am Flight 103 and the deaths of 270 people at Lockerbie. If the conspiracy happened abroad then the Scottish court, despite being deliberately set up outside Scotland for the purposes of neutrality, would not have jurisdiction.

Lord Sutherland dismissed the argument as "illogical" but was also mindful that it was not the affront to common sense it seemed, but contained its own compelling brand of legal logic. He therefore allowed an appeal against his judgment where the issues will once again be rehearsed in open court. The whole trial, when it actually gets under way in May, more than a year after the Libyans surrendered to answer the charges against them, will be like this; a self-conscious display of scrupulous fairness and attention to detail, an obsessive desire to appreciate opposing points of view, and a firm insistence that justice will be seen to be done.

Scotland has already settled in well to the little part of foreign land it has been allocated Kamp van Zeist, a former American military base that is now an outdoor museum – for the approaching trial. With the courtroom proper still under construction, Kamp van Zeist’s gymnasium was pressed into service last week as temporary accommodation for preliminary legal skirmishes. No sooner had the QCs crossed the line with Dutch politie on one side and Scots police on the other, than they donned their wigs and gowns and paired off to pace up and down just as they traditionally do in Parliament Hall at the Supreme Courts in Edinburgh to prevent their conversations being overheard. In another part, where US airmen had whiled away the Cold War playing basketball, academics from Glasgow University patiently explained the legal system to a knowledge-hungry international media, including a couple of Russians who nodded knowingly at the motto to the lion and unicorn coat-of-arms, Nemo Me Impune Lacessit.

Beyond the partition wall in the bottom quarter of the gym, the press were divided from the legal teams by the kind of red-twisted rope that usually guards antique furniture in stately homes, and the lawyers were divided from the accused by bullet-proof screens on wheels.

The Libyans, always immaculately groomed , were led in and out from the underground detention area to the dock by Scottish police officers holding their wrists. Interpreters sat beside them whispering translations of arcane legal terms and Latin phrases in their ears, occasionally gesticulating with a dramatic wave of an arm or the raising of eyebrows at apparently unimportant moments. Megrahi, the older of the two accused, sat throughout wearing an overcoat as if the winter cold was somehow penetrating the windowless walls surrounding him.

It will be much like this in the courtroom for the duration of the trial – six months or two years, no-one really knows – as the prosecution evidence is presented and the past is recreated in a hundred small cameo episodes that build, it will be claimed, into the worst terrorist outrage of an era when the world was ordered very differently.

The framework for what is to come is contained in the narrative of the indictment which sets out the course of events that the Crown will seek to prove, in particular that the two accused were agents of the Libyan Intelligence Service, acting in concert with others and travelling around to gather electronic timers and components for the bomb that was eventually to be loaded into the hold of Flight 103. Colin Boyd QC, Solicitor General, last week gave a hint of what will be claimed by briefly describing an agent, using a false passport, embarking on a ‘dry run’ on the route from Libya to Malta to Germany one month before the bombing in December 1988.

It promises to be compelling stuff, related to the outside world principally by newspaper reports since the only television coverage so far agreed will be closed-circuit links to Syracuse University in the US for American victims’ families, and a location in London for British relatives.

The effectiveness of Scots law will be as much under test as the guilt or innocence of the two Libyans. The international understanding, replete with secret meetings and nudge-nudge assurances, was crucial in bringing about this unprecedented trial, but if the Libyan government thought its intelligence service would be above criticism, and if the US government thought its intelligence agents would not be required to account for their actions, they will very soon be disabused of the notion. The law, once set in motion, can be relentless in drawing out a infinite number of competing strands in its attempts to find the truth, and what is said in court can be reported without restraint.

Juries are regarded as the ‘masters of the facts’ compared with the judges’ role as ‘master of the law’. Since there is to be no jury in this case, the burden is on Lord Sutherland and his two colleagues to be masters of both and ensure that all doubts are dispelled before a verdict is reached.

There were many people who believed a Lockerbie trial would never happen because powerful vested interests did not want it. There are still sceptics who see the whole thing as a freak show extension of foreign policy, a forum for political manipulation rather than honest disclosure. The former were proved wrong, and so will the latter be. Open court is a very dangerous place for those who prefer to inhabit the shadows. The simple principle of ‘having their day in court’ is not confined to the Libyan accused who hope to prove their innocence. It is also there for the bereaved families who, four days before Christmas, must endure the 11th anniversary of the bombing hoping they will soon know the real story of what happened to Flight 103.

The outcome is, of course, entirely unpredictable whatever expert authorities may say. Whether the truth will be uncovered is unknowable because, as was argued last week, it is as much to do with the law as it is to do with the facts. The Scottish court in the Netherlands can only do its best, according to the rules of law, by examining the strength of the evidence put in front of it. In the final analysis, whatever the verdict at the end of it all, people will make up their own minds.