Official disquiet was kept suppressed

[What follows is excerpted from a comment by Professor George Joffé of the University of Cambridge and King’s College, London, that was published on the Jurist website hosted by the University of Pittsburgh Law School on this date in 2009:]

Lockerbie bomber's release an effort to ease political tensions and avoid damaging appeal

Despite all the fulmination, protest and anger, the return of Abdelbasset al-Maghrahi to Libya draws a definite line under what has proved to be a very worrisome case — at least for the Scottish justice system. Mr al-Maghrahi was convicted in a special Scottish court, organised at Camp Zeist — an abandoned NATO base — in Holland, of responsibility for the Lockerbie bombing in 1988. The case had been problematic from the start. The Libyan authorities had first refused to hand over the two accused — Mr al-Maghrahi and Mr al-Khalifah al-Fahima — despite United Nations sanctions and then only agreed because the court that was to try them was constituted outside direct British or American control. Then there had been problems over the evidence (...). And the verdict itself had raised almost as many questions as it had answered, with the bench admitting that some of the evidence barely passed tests of credibility.

In short, Mr al-Maghrahi had been convicted only on the balance of probabilities, not because of overwhelming evidence of his guilt. Doubts about the rightness of his conviction surfaced almost immediately afterwards. They were raised covertly in Scottish legal circles, despite the rejection by the Scottish law-lords of Mr al-Maghrahi's appeal. They were raised overtly by the Libyan leader, Colonel Qadhafi, who promised to arrange Mr al-Maghrahi's release as an innocent victim. They were common knowledge within the corridors of power in Whitehall and in Edinburgh, even if official disquiet was kept suppressed. Then, as time went on, particularly after Mr al-Maghrahi became terminally ill, they became part of the day-to-day diplomatic exchanges between Britain and Libya. The Libyan authorities made it clear that they would not forgive Mr al-Maghahi's death in Scottish custody and that British-Libyan relations would suffer severely if it occurred.

In such circumstances, it is hardly surprising that, when pushed, the Scottish authorities, no doubt with considerable resentment at the position in which they had been put by Whitehall, decided to take the one legally impeccable exit available to them, compassionate release. Since Scotland acquired its own autonomous government a decade ago, there have been thirty applications for compassionate release, twenty-three of which have been granted. In Mr al-Maghrahi's case, no doubt, the issue was eased by his willingness to abandon his appeal, instigated by the Scottish Criminal Cases Review Commission's finding that there were at least six grounds for legitimate concern about the original judgment.

In other words, the release on compassionate grounds tied up a whole series of loose ends. A potentially unsatisfactory conviction was ended without the embarrassment of a successful appeal and potential diplomatic and commercial tensions were dissipated without the British government being directly involved, the Scottish authorities, in effect, being forced to take over Whitehall's responsibilities. It would have been a solution worthy of Machiavelli himself, were it not for three further considerations. First was the undoubted anger of the families of the American victims which the Obama administration has adroitly diverted onto Scotland. Second was Libya's maladroit handling of Mr al-Maghrahi's return which will, no doubt, be amplified by the celebrations for the fortieth anniversary of the Libyan revolution. And third is the unfortunate fact that we shall never know what really happened at Lockerbie nor, indeed, who was really responsible.