Wednesday 4 February 2015

Lockerbie, the Lord Advocate and conflict of interest

The Lord Advocate is the head of the prosecution system in Scotland. All serious (solemn) cases are brought in his name and prosecuted by him or one of his deputes (or, in the sheriff court, by a procurator fiscal who is a member of his department, the Crown Office and Procurator Fiscal Service). In the investigation of crime, the police are legally obliged to obey any directions given by the Lord Advocate or on his behalf. 

Police Scotland are currently investigating serious allegations of criminal misconduct in the course of the Lockerbie criminal investigation, prosecution and trial. The allegations are directed against, amongst others, police officers, Crown Office personnel involved in the prosecution, and forensic scientists instructed and called as witnesses by the Crown Office. The current investigation is a rigorous and professional one. It is likely to be concluded later this year.

Under the current law the investigators’ report will be submitted to the Lord Advocate. Even if that report reaches the conclusion that there are grounds for prosecution, it is for the Lord Advocate to decide whether any prosecutions should in fact be brought. He could decide not to proceed.

Given that any charges would be against (i) police officers acting under the oversight of, and subject to direction by, the Crown Office; (ii) forensic scientists instructed and called as witnesses by the Crown Office; and (iii) members of the Crown Office’s prosecution team at the Lockerbie trial, there is an obvious conflict of interest involved in the current head of the Crown Office being the person to decide whether prosecutions should be commenced. This is all the more so when one considers recent statements dismissive of concerns about the Lockerbie investigation, prosecution and conviction made by the present Lord Advocate while Police Scotland’s investigation was still live and ongoing (not to mention older such statements).

In these circumstances it is submitted that now, before Police Scotland’s report is ready for submission, the necessary steps should be taken to avoid the Lord Advocate finding himself in the embarrassing position regarding conflict of interest that the report’s landing on his desk would place him and the Crown Office in. The police report should rather be handed to, and the decision whether prosecutions ought to follow should be devolved to, an independent lawyer outwith the Crown Office. Our American cousins in analogous situations make use of a special prosecutor or independent counsel. This is one area in which we can learn from them. Why not start putting the mechanism in place now?


  1. Living with the "Lockerbie Affair", 2015, (google translation, german/english)

    Then a crucial appendix, written from Major Lewis, listed on page number 152, in the SCCRC Report (800 pages) must also will analyzed and published. This document could bring a positive effect in addition together with Swiss official documents for the truth-making.

    Edwin Bollier, MEBO Ltd. Telecommunication Switzerland, Webpage:

  2. I'll certainly vote for that. What a splendidly simple and satisfactory method of dealing with such a fraught situation. Moreover, how thoughtful and considerate. With the adoption of an ad hoc special prosecutor, the Lord Advocate need no longer endure all those sleepless nights fretting about how COPFS can present itself as being a fair and unbiased institution whose objective is the service of justice without fear or favour.


  3. I see a New Zealand judge has been appointed to head the child abuse inquiry. Precedent.

  4. I would unreservedly endorse the idea of appointing a ‘Special Prosecutor’ independent of the Crown Office and Lord Advocate to receive the police report and decide on further action.

    These Crown authorities have, by their very public interventions, negatively affected the ongoing police enquiry and totally compromised their position. It is clear that they will be unable to make an independent and objective assessment of any police report as they are constitutionally mandated to do.

    In January last year I engaged in a Scotsman discussion which followed comments by Lord McCluskey.

    We have to wonder just how the procurators fiscal’s will square their remarks with the latest crass interventions by the Lord Advocate.

    ‘It is essential that your readers are made aware of the constitutionally independent role of the prosecutor in Scotland which is enshrined in legislation.’

    What I find amazing is that to date our media have been silent. Is it a case of old news or that unfortunately we have lost the investigative reporting edge that challenged official incompetence and arrogance and protected the rights of Scotland's citizens?

  5. We don't have crusading, investigative journalists any more. Certainly not people prepared to dedicate themselves to a particular concrete issue as opposed to general philosophical topics. And maybe you can't blame them, if nobody is going to print what they dig up, or write about it. Was Brian Deer's filleting of Andrew Wakefield the very last hurrah?

    The media these days seem to have a pre-determined agenda. They know the story they think will sell papers or induce viewers to tune in, and they go out to get that story. The idea of looking round and seeing what stories need to be told seems to have died.

  6. There has always been a predetermined media agenda and there have always been good but neglected investigative journalists. Here, I am minded of the relationship between Hearst's Yellow Journalism and the selling of his sensationalist drivel and war. Funnily enough, Ambrose Bierce once worked for him. Bierce, of course, being the journo behind the 'Devil's Dictionary' in which the term Cynic is defined as 'a blackguard whose faulty vision sees things as they really are, not as they ought to be seen. Hence the tradition amongst the Sythians of gouging out a cynic's eyes to improve his vision.' I wonder what Bierce might have said about this current Lockerbie/Zeist campaign. I can only imagine how a police officer, conscientiously investigating these allegations, must be feeling having spent xyz man-hours and tax payer's money to have the country's chief prosecutor prejudging the case in the press before any report is submitted.

    There is something fundamentally wrong in a global economic culture that simply survives (only just) by maintaining its mandate through dressing up in Armani for the cameras and keeping the populous in a mushroom culture.

    I don't want revolution and blood on the carpet but, honestly, the regular folk of Scotland ought to be scrutinising much more closely the outrageous changes being made these days to their criminal justice system at the behest of the Crown Office. After all, any one of us, or our friends or family, could potentially become a victim of our dispensing of the centuries old, and more recent, failsafes that have preserved the prohibition of double jeopardy, that have obliged the Court of Appeal to knuckle down and hear what the SCCRC has submitted to it, and that corroboration of key evidence is required.

    Lockerbie/Zeist is without question the most emblematic and scandalous case in Scottish legal history. If we can't get this right, what can we get right?


  7. Couldn't agree more, Robert.