Saturday, 9 January 2016

The final stages of the Lockerbie trial

[What follows is excerpted from a report published on this date in 2001 on the BBC News website:]

Two of the three charges faced by the Libyans accused of the Lockerbie bombing have been dropped in the final days of the trial.

Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah had been charged with murder, conspiracy to murder and contravening the aviation security acts.

But following the summing up of senior prosecutor Alistair Campbell on Tuesday, the men now face one charge - that they murdered 259 people on board Flight Pan Am 103 and 11 in the small Scottish town of Lockerbie. (...)

Earlier on Tuesday he had said: "The Crown have proved the case against each of the accused beyond reasonable doubt.

"Your lordships will require to be satisfied of guilt beyond reasonable doubt.

"Mathematical certainty is neither necessary nor achievable.

"In my submission the Crown have proved the case against each accused beyond reasonable doubt.

"The evidence comes from a number of sources which, when taken together, provided a corroborated case both as to the commission of the crime and the identity of the perpetrators.

"I invite you to convict of murder." (...)

The trial could now be over within weeks after defence teams for the accused caused surprise on Monday by saying they would offer no further evidence.

The decision by advocates for the pair came after the Syrian Government refused to hand over evidence which was considered vital to the defence case.

Mr Al Megrahi had been expected to give evidence as part of the defence's attempt to establish that Palestinian terror groups, and not Libyans, were responsible for the atrocity.

The prosecution called 230 witnesses, none of whom saw the bomb being placed on the doomed jumbo.

Instead, those leading the case have relied on evidence which they say when put together proves the guilt of the two men.

The defence is expected to argue this evidence is no more than coincidences and fails the tough test which must be passed to gain convictions.

[RB: A short time before, I had written an article on about the options open after the closing of the prosecution case. The following is an excerpt:]

The conventional wisdom amongst criminal defence lawyers regarding the presentation of evidence on behalf of their clients is "less is best." If the prosecution case is a weak circumstantial one, the preferred tactics would be to point out and emphasise the deficiencies in the prosecution case rather than to present a positive case for the defence. In particular, subjecting his own client to the ordeal of giving evidence is something that defence counsel is normally reluctant to do unless the Crown evidence is so strong that acquittal is unlikely unless the accused person himself can explain it away or create a doubt in the mind of the trier of fact. It is, of course, ultimately for the accused person himself to decide whether to leave the dock and enter the witness box, but most clients will seek the advice of their legal representatives on this matter and will usually follow it.

It would therefore not be surprising (particularly if the missing pages of the "Goben Memorandum" have not as yet been retrieved from Syria under the Letter of Request and the judges reject any request by Megrahi's representatives for a further adjournment to enable it to be obtained) if Megrahi's team decided, perhaps after leading a few witnesses to clarify some minor points, not to lead further evidence (including the evidence of Megrahi himself) and Fhima's team decided to lead no evidence at all. On this scenario, the evidence-taking stage of the trial could be concluded in a very short time indeed.

Once that point is reached, the proceedings continue with closing speeches from (1) the Crown (2) counsel for Megrahi and (3) counsel for Fhima. In normal Scottish practice the prosecutor is expected to commence his speech as soon as counsel for the defence intimate that the defence case is closed. It is not standard practice for the prosecutor to be granted, or indeed to seek, an adjournment to prepare his submissions. It will be interesting to see whether the Crown ask for such an adjournment in the present case and, if so, how they respond to any suggestion that they have already had ample time since the Crown case ended which could and should have been devoted to the preparation of their closing submissions. It will also be interesting to see how long prosecution and defence counsel take for their closing speeches. Even in very serious criminal cases in Scotland, it is unusual for any closing speech to last more than one hour. In the special circumstances of the Lockerbie trial (where there is a full transcript of all of the evidence available for counsel to refer to, which there is not in a normal Scottish jury trial) it is to be expected that the closing speeches will be somewhat longer than this. But I would be (slightly) surprised if any single speech lasted more than one court day.

After the final defence speech, the court must retire to consider its verdict, which may be determined by a majority of Lords Sutherland, Coulsfield and MacLean (the fourth judge, Lord Abernethy, has no vote). The verdict must be delivered in open court by the presiding judge. If there is a verdict of guilty the court must, at the time of conviction or as soon as practicable thereafter, give a judgement in writing stating the reasons for the conviction. There is no requirement for written reasons if the accused are acquitted (which could, of course, be by means of either Not Guilty or Not Proven verdicts) but I would be somewhat surprised if the court did not choose to give reasons for acquittal. I would also be somewhat surprised if any verdict was other than unanimous.

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