Sunday, 10 January 2016

The neutral venue proposal

[On this date in 1994 I was in Tripoli. Here’s my explanation of how it came about:]

I first became involved in the Lockerbie affair in early 1993.  I was approached by representatives of a group of British businessmen whose desire to participate in major engineering works in Libya was being impeded by the UN sanctions.  They asked if I would be prepared to provide (on an unpaid basis) independent advice to the government of Libya on matters of Scottish criminal law,  procedure and evidence with a view (it was hoped) to persuading them that their two citizens would obtain a fair trial if they were to surrender themselves to the Scottish authorities.  This I agreed to do, and submitted material setting out the essentials of Scottish solemn criminal procedure and the various protections embodied in it for accused persons.

In the light of this material, it 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. [RB: Incidentally, the Libyan government minister who broke the news to me and whose embarrassment was so obvious was Moussa Koussa.]  

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 prison, 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).

The Libyan government attitude remained, as it always had been, that they had no constitutional authority to hand their citizens over to the Scottish authorities for trial.  The question of voluntary surrender for trial was one for the accused and their legal advisers, and while the Libyan government would place no obstacles in the path of, and indeed would welcome, such a course of action, there was nothing that it could lawfully do to achieve it. (...)

Having mulled over the concerns expressed to me by Dr Legwell in October 1993, I returned to Tripoli and on 10 January 1994 presented a letter to him suggesting a means of resolving the impasse created by the insistence of the governments of the United Kingdom and United States that the accused be surrendered for trial in Scotland or America and the adamant refusal of the accused to submit themselves for trial by jury in either of these countries.  This was a detailed proposal, but in essence its principal elements were: that a trial be held outside Scotland, ideally in the Netherlands, in which the governing law and procedure would be that followed in Scottish criminal trials on indictment but with this major alteration, namely that the jury of 15 persons which is a feature of that procedure be replaced by a panel of judges who would have the responsibility of deciding not only questions of law but also the ultimate question of whether the guilt of the accused had been established on the evidence beyond reasonable doubt.

In a letter to me dated 12 January 1994, Dr Legwell stated that he had consulted his clients,  that this scheme was wholly acceptable to them and that if it were implemented by the government of the United Kingdom the suspects would voluntarily surrender themselves for trial before a tribunal so constituted.  By a letter of the same date the Deputy Foreign Minister of Libya stated that his government approved of the proposal and would place no obstacles in the path of its two citizens should they elect to submit to trial under this scheme.


  1. Sounds like the 'defence' advised the accused they wouldn't get a fair jury trial in Scotland, but would get a fair non-jury trial at a US military base in Holland, 'somehow forgetting' its easier to nobble a judge than a jury, or did this new 'defence' advice to the accused follow 'advice' from the prosecution/CIA?

  2. Most interesting reading, Robert.

    Dave wrote:
    "Sounds like the 'defence' advised the accused they wouldn't get a fair jury trial in Scotland, but would get a fair non-jury trial at a US military base in Holland, 'somehow forgetting' its easier to nobble a judge than a jury, or did this new 'defence' advice to the accused follow 'advice' from the prosecution/CIA?"

    I would myself anytime prefer three good judges than an average jury. We have also seen countless examples on amazing, wrong jury convictions.

    But we now know that good judges are harder to find than you'd think. Unlike jury members, they have a career related to the outcome. In case with high political profiles they have a lot to lose.

    Naturally, no country would ever again expect justice from Scottish judges in an international trial, just as we no longer expect FBI/CIA not to produce unbiased genuine evidence. It is a simple matter of looking at the historical facts, combined with the unwillingness to clean up properly. But this knowledge was not always there, at least not to me.

    And if that was what it took to get Libya off the embargo, it was the right thing to do. We are talking about countless destinies, including children dying because of unavailable medication.
    Neither Megrahi nor Fhimah could really have refused in the long run.

  3. SM

    "I would myself anytime prefer three good judges than an average jury". Well yes some clever people have a tendency to look down on ignorant juries and put their trust in clever judges.

    But this, particularly in political cases, is called being too clever by half and lacking common sense, because a clever judge, and no doubt 'hand-picked' for the job, will be clever enough to know where their own interests lay.

    Whereas even an average jury, as long as a case is presented in normal language will see obvious mistakes in the prosecution case, and of course jury trial was introduced as protection against 'clever judges'.

    Also SM

    "Neither Megrahi nor Fhimah could really have refused in the long run". Well yes I doubt they were even consulted on the pros and cons of a jury trial, they just followed clever advice by their 'defence' team who were just following advice ...