Missing witnesses

[On this date in 2000 the Lockerbie trial was adjourned for two weeks. This adjournment had proved necessary largely because of difficulties encountered by the Crown in inducing witnesses (particularly from Malta) to attend at Camp Zeist to give evidence.  During the break in court proceedings I wrote a number of articles for The Lockerbie Trial website, curated by Ian Ferguson and me. Here are two of them:]

THE MISSING WITNESSES

When the trial resumes at Camp Zeist on Tuesday 11 July 2000, it will be the thirty-first day of evidence.  Many witnesses have been called into the box to testify, a substantial number of them regarding matters not disputed by the defence and in respect of which it might have been thought that agreement could have been reached between prosecution and defence to obviate the necessity of their attendance.  But if some of the witnesses have seemed to the outside observer to be superfluous, it is equally the case that persons whose presence as witnesses might have been expected, have been conspicuous by their absence.

Prominent amongst these is John Orr who, as a Detective Chief Superintendent and Joint Head of Strathclyde CID and latterly as Deputy Chief Constable of Dumfries and Galloway, headed the Scottish police investigation into the Lockerbie disaster.  In a normal Scottish murder trial the officer in charge of the police investigation team is usually one of the earliest witnesses to be summoned to give evidence.  The absence of Mr Orr, who is now Chief Constable of Strathclyde, from the ranks of police witnesses at the proceedings at Zeist has caused a number of raised eyebrows. 

Other absentees are Oliver "Buck" Revell and Vincent Cannistraro.

Revell was the chief FBI agent assigned to the Lockerbie investigation.  In The Oklahoma City Bombing and the Politics of Terror by David Hoffman (1998, Feral House, Venice CA) he is described as Associate Deputy Director of the FBI and as the FBI counter-terrorism chief.  His son had been booked as a passenger on Pan Am 103, but switched to another flight some time before the plane departed. Cannistraro was the chief CIA operative assigned to the Lockerbie investigation.  In Libya: The Struggle For Survival by Geoff Simons (2nd edition, 1996, Macmillan, London) he is described as "the head of the CIA's counter-terrorism centre who led the American investigation into the bombing" and in The Oklahoma City Bombing he is described as a "CIA intelligence advisor to the National Security Council."  Both of these men are now retired, and in the years since November 1991 when the two Libyans were first accused of the atrocity, have been far from reticent in making known their views on the subject of Lockerbie in the media.  It is a pity that the Crown has not seen fit to call upon them to share with the Court, from the witness box, their very great knowledge of the Lockerbie affair.

Members of the defence team asked Mr Cannistraro to meet them for the purpose of precognition (the Scottish equivalent of taking a pre-trial deposition), but he refused to do so. 

In Scotland, there is a legal duty upon citizens to make themselves available for precognition by both the prosecution and the defence.  As one of Scotland's most distinguished criminal judges, Lord Justice Clerk MacDonald, said: "I consider it to be the duty of every true citizen to give such information to the Crown as he may be asked to give in reference to the case in which he is to be called; and also that every witness who is to be called for the Crown should give similar information to the prisoner's legal advisers, if he is called upon and asked what he is going to say....  I have been asked to express my view, and it is that every good citizen should give his aid, either to the Crown or to the defence, in every case where the interests of the public in the punishment of crime, or the interests of a prisoner charged with crime, call for ascertainment of facts."

But none of this seems to cut any ice with Mr Cannistraro.

UNWILLING WITNESSES

Courts of law in general have powers of compulsion only in respect of persons who are physically present within their territorial jurisdiction.  Amongst other things, this means that only such persons can be compelled to attend and give evidence before them.  This limitation on its coercive powers is not something which is unique to the Scottish Court sitting at Camp Zeist in the Netherlands or to Scottish courts in general.  It would have applied equally if the Lockerbie trial had been held in a court in, for example, the United States of America.

A number of Maltese witnesses, mainly persons employed or formerly employed at Luqa Airport, have refused to attend to give evidence at Camp Zeist, and because of this the prosecution have been compelled to seek (and have been granted) yet another adjournment to enable them to secure the attendance of other witnesses.

The refusal of the Maltese witnesses to attend does not mean that their evidence is necessarily lost to the Court.  It is open to the Scottish Court by Letter of Request to seek the assistance of the appropriate Maltese judicial authorities in obtaining, if necessary compulsorily, the testimony of the witnesses in question.  This might involve either the witnesses giving evidence from Malta by means of a live television link to the courtroom at Zeist or the witnesses being examined before a magistrate or judge sitting in Malta and a transcript of their evidence then being supplied to the Scottish Court.  These procedures are competent in a Scottish criminal court by virtue of the Criminal Justice (International Co-operation) Act 1990, section 3, and the Criminal Procedure (Scotland) Act 1995, sections 272 and 273.

As a last resort, the Crown, if able to satisfy the Court that it was not reasonably practicable to secure the attendance of the witnesses at the trial or to obtain their evidence in any of the ways mentioned above, and notwithstanding the general prohibition on the use of hearsay evidence in criminal proceedings, would be able to use as evidence any statement made by the witnesses in question, e.g. to police or other investigators, in the course of the Lockerbie investigation.  This is provided for under section 259 of the 1995 Act.  It does, of course, affect the weight likely to be accorded to the evidence that it is not given by the witness personally in court and is not subject to cross-examination.

If the Crown are having difficulty in securing witnesses to appear before the Court, and their need to request an adjournment when these Maltese witnesses (whose reluctance to attend has been known for months) balked at appearing seems to suggest that they are, perhaps they should reconsider their apparent decision not to call Chief Constable John Orr, Oliver "Buck" Revell and Vincent Cannistraro.

Just a suggestion.