Thursday 17 September 2015

The legal warrant for the Lockerbie trial

[It was on this date in 1998 that the legal instrument that allowed the Lockerbie trial at Camp Zeist to take place was laid before the UK Parliament. What follows is excerpted from an article by me entitled The Lockerbie Disaster that was published in the Edinburgh Law Review in January 1999:]

For four years and seven months the Government of the United Kingdom (and that of the United States) consistently maintained that the "neutral venue" scheme proposed by the writer and accepted by the Libyan Government and defence lawyers in January 1994 was impossible, impracticable and inherently undesirable. For a flavour of the strength and vehemence of the Government's opposition, the interested reader is referred to "The Lockerbie Trial" 1998 SLT (News) 9 by Lord Hardie, a response by the Lord Advocate to the present writer's "The Lockerbie Proposal" 1997 SLT (News) 304.
However, on 24 August 1998 the Governments of the United Kingdom and United States announced that they had reversed their stance on the matter. In a letter of that date to the Secretary-General of the United Nations, Kofi Annan, the Acting Permanent Representatives of the UK and the USA stated:
".... in the interest of resolving this situation in a way which will allow justice to be done, our Governments are prepared, as an exceptional measure, to arrange for the two accused to be tried before a Scottish court sitting in the Netherlands. After close consultation with the Government of the Kingdom of the Netherlands, we are pleased to confirm that the Government of the Kingdom of the Netherlands has agreed to facilitate arrangements for such a court. It would be a Scottish court and would follow normal Scots law and procedure in every respect except for the replacement of the jury by a panel of three Scottish High Court judges. The Scottish rules of evidence and procedure, and all the guarantees of fair trial provided by the law of Scotland, would apply."
In order to give effect to this change in policy, an Agreement was concluded on 18 September 1998 between the Government of the Kingdom of the Netherlands and the Government of the United Kingdom regulating the sitting of the Scottish Court in the Netherlands; and an Order in Council (The High Court of Justiciary (Proceedings in the Netherlands) (United Nations) Order 1998, SI 1998 No 2251) was made on 16 September 1998 and laid before Parliament on 17 September, to confer the necessary legal authority for Scottish criminal proceedings against the two Libyan suspects to be conducted in the Netherlands. The scheme set out in these two documents differs from the January 1994 proposal in only two respects. First, the court is to consist of a bench of three Lords Commissioners of Justiciary (with a fourth who is to sit with the court, participate in all its deliberations, but to have no vote in any decision required to be taken unless one of the three dies or is absent for a prolonged period) as distinct from an international panel of judges chaired by a Lord Commissioner of Justiciary. Secondly, any appeal arising out of the proceedings is (where either of the accused is entitled to attend the appeal and intimates that he wishes to do so) to be heard in the Netherlands by a bench of five Lords Commissioners of Justiciary and not (as provided for in the January 1994 proposal) by three judges sitting in the Court of Criminal Appeal in Edinburgh in the usual way.

In the weeks since the announcement of the British and American change of heart there have been conflicting signals from Libyan sources regarding the acceptability or otherwise of the scheme. However, at meetings which the writer had between 20 and 22 September 1998 with Libyan government ministers (including Colonel Gaddafi) and with the new team of Libyan lawyers representing the suspects, he formed the clear impression that, provided certain clarifications of the details of the scheme were provided and reassurances as to its meaning and implications supplied, the suspects would surrender themselves for trial. But it may take some considerable time for these clarifications and reassurances to be obtained, largely because the Governments of the United Kingdom, the United States and the Netherlands refuse to negotiate or communicate directly with either the Libyan Government or the Libyan defence lawyers. They insist that all communications be channelled through the office of the Secretary-General of the United Nations. As far as the Libyans are concerned, however, what remain to be resolved are modalities or practicalities: the principle has been accepted, as have all but a few of the details. The odds in favour of the trial actually happening are good.

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