Wednesday, 17 September 2014

The fiction of Crown Office integrity in Lockerbie prosecution

[On this date two years ago, I reproduced on this blog an article written by Dr Jim Swire for Scottish lawyers’ magazine The Firm. It reads as follows:]

Lockerbie and Hillsborough: the deliberate diversion of blame

[This is the headline over an article by Dr Jim Swire published today on the website of Scottish lawyers’ magazine The Firm.  It reads as follows:]

Dr Jim Swire writes exclusively for The Firm, following the revelations in the Hillsborough papers, and sees the thread linking the common behaviour of the legal and political institutions that bind the Pan Am 103 affair with the tragic deaths at Hillsborough.

In the world confrontation between the terrorists and the developed communities of the West, the complex structures that regulate our societies have intelligence, high technology, well orchestrated military might and the precepts and respect of our peoples for the rule of law as their main resources.

From the nature of terrorism and the front line responses of Western intelligence springs a great temptation: to use the innately secretive culture of intelligence to react to terrorism in ways which their defended populations might denounce, were they only privy to them. 'Extraordinary rendition' is a good example of this. Yet reliance upon secrecy from their own populations can only ever be a temporary protection for those who overstep the line and use that privileged secrecy in ways that defy the rule of law, which they ostensibly support.

To cross that line and use our State resources in ways that are illegal is in the end to hand a moral victory to the terrorists. To divert blame away from the actual perpetrators is to protect them and to increase the chances of them striking again. The American response to terrorism has been profoundly different from the British. America has turned to intelligence/military responses in 'the war on terror'. Britain has striven to use intelligence/criminal law. Except where our leaders have got carried away by enthusiasm for the 'special relationship' with the US and dragged us, the people protesting, into military intervention in Iraq and Afghanistan.

But State pressure upon our law to produce politically desired convictions has produced terrible distortions of that law such as detention without trial and the warped trials of alleged terrorists such as the Maguire and other IRA related cases.

It is my belief that in the case of Lockerbie the law of Scotland has been subsumed into the priorities of American foreign policy.

Douglas Hurd, a man deserving of great respect for his personal intelligence and integrity has said to Tam Dalyell and Robin Cook, referring to Lockerbie: "I do ask you two to believe that as Foreign secretary I cannot tell the Scottish Crown Office (which was in charge of the Lockerbie case) what to do, nor does the Foreign Office have detailed access to evidence which they say they have. You must understand that law officers really are a law unto themselves."

Yet I have come to believe over the past 25 years that not only did the US manipulate the Scottish criminal legal process, but that the Scottish Crown Office has ever since, fought a battle to maintain the fiction that it acted with integrity throughout the legal prosecution process.

In so doing they are in effect protecting the perpetrators of the dreadful terrorist massacre of the innocents that was Lockerbie in 1988, and damaging positive responses to better protect the future (such as making it a criminal offence for an airport not to report and take immediate appropriate action over break-ins perhaps?). I believe that in the long run it will be less damaging to the reputation of the West, and certainly for my favourite country, Scotland, to address these issues, and to take corrective action ourselves for the future, rather than allow our failures to be eventually exposed at the bar of history.

In a democratic society the more citizens who assess such matters for themselves, the greater is likely to be the integrity of the decisions which their politicians must eventually take to resolve the issues.

[A much longer and more detailed piece by Dr Swire can be read in the same blogpost from 2012.

Aspects of the conduct of the Crown Office in the Lockerbie prosecution form the basis of some of Justice for Megrahi's allegations of criminal misconduct in the Lockerbie investigation, prosecution and trial that are currently under investigation by Police Scotland.]

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