[What follows is an item originally posted on this blog on this date in 2008:]
Dr Swire on public interest immunity
Today's issue of The Herald has a letter on the public interest immunity issue from Dr Jim Swire. It reads as follows:
Our first encounter with the Scottish justice system was the fatal accident inquiry (FAI) held in Dumfries under the late Sheriff Principal John Mowat. Two findings stood out: 1. The aircraft destroyed at Lockerbie on which our families perished, and into which it appeared that a bomb had been loaded at Heathrow, had been under the "host state protection" of the UK authorities; 2. It was preventable.
At the end of 1991 indictments were issued against two Libyans; there was, so the Foreign Office told us, no evidence against any other country than Libya.
Within two weeks, and with the subsequent ending of a professional career, one of us went to visit Colonel Gaddafi. We told him we believed that Scottish criminal justice was among the fairest available, and that it was independent of the English-based government. We dared to explain that we felt US justice to be inappropriate because of the death penalty, and because of the enmity between the two nations, and that Libyan justice, though appropriate under the international aviation treaties of the time, would never be accepted as impartial by the international community. Our plea to him was to allow his citizens to face justice under Scots law.
It was not until after two further visits to Libya and following the intervention of many, including Professor Robert Black of Edinburgh with proposals as to how Scottish criminal law might best be used, plus that of the late Robin Cook as Foreign Secretary, and Nelson Mandela some years later, that our wish was granted, the result being the trial at Zeist in Holland.
Meanwhile, we had sought, in the light of the FAI findings and the known warnings received beforehand, an independent and far-reaching inquiry into why the UK government had failed to protect our families. The Thatcher government of the day refused to discuss the issue of an inquiry with us. Twenty years later, despite repeated refusals, we are still waiting for the government to face up to the 1988 failure by allowing a full inquiry.
Therefore, we bring some preconceptions from outwith the criminal justice arena about the role of the UK government in the whole Lockerbie disaster, and issues arising from the trial, though that trial has to do only with the accusations against the two Libyan individuals, one of whom was acquitted and the other of whom is currently in Greenock prison.
Doubts about the verdict against him meant the affair was referred to the Scottish Criminal Cases Review Commission (SCCRC) which, after some three years, decided the trial might have been unfair, partly because two documents given to the UK government by a foreign power had been available to the Crown and Dumfries and Galloway police from long before the trial, but not to the defence. The matter fell to be resolved by the High Court.
Following representations by the advocate-general to the [UK] government, the Foreign Office's response was to make the two documents the subject of a Public Interest Immunity (PII) certificate.
The two documents, the denial of which to the defence was crucial to the SCCRC's decision that the verdict might be unsafe, are still denied to those by whom the convicted Libyan wishes to be represented in the appeal. The Foreign Office, through this PII certificate, has attempted to block, in the name of the national interest, the very Scottish criminal judicial process we believed to be independent of it.
The documents refer to a preventable outrage. They were provided to Dumfries and Galloway police and the Crown Office from at least 1996. PII certificates have never impacted upon Scottish criminal justice in this way before. The High Court has now to decide whether to set aside the PII certificate, or whether the national interest is really sufficiently powerful that it should be served by some intermediate degree of security for the documents. To do this the court first has to see the documents. Last week the High Court issued an order to the advocate-general that they be supplied with the documents within seven days.
No doubt their lordships will reach a wise decision; their responsibility is both to the Lockerbie criminal appeal process, and to future perceptions as to the independence of our criminal justice system. It has always been part of our endeavour to force something good out of this atrocity, and we hope Scottish criminal justice will be enhanced, not harmed.
As for the relatives of the dead, some of us cast the Westminster government in a rôle far removed from impartiality. However seriously defective its full failure in 1988 may or may not have been, it has hidden it behind powerful protective screens. The repercussions, should the criminal verdict be overturned on appeal, might impact heavily upon the perceived degree of the government's failure to protect our families and promote the truth. Just what this PII certificate is supposed to benefit is unclear. Maybe the answer is simply the politicians and civil servants of the Foreign Office.